By Louis Gentilucci From Constitution Center

Even before the Obergefell v. Hodges decision by the Supreme Court in June, Justice Antonin Scalia has become quite famous for his blistering dissents. But he is not the only Justice famous for dissenting opinions.

Throughout the history of the Republic, there have been many hot-button issues brought before the Supreme Court. Some have been unanimous, but many have had dissenting opinions that have become famous in their own rights.

Here is a quick look at some noteworthy dissents from the bench that are still discussed today.

Dred Scott v. Sandford, March 6, 1857:

Dred Scott was a slave from Missouri, whose master had brought him north into Wisconsin Territory, where slavery was illegal. He claimed that from that moment onward, he was a free man. The Court, under the leadership of Chief Justice Roger Taney, ruled 7-2 against Dred Scott’s claims to freedom. But it went further than that. The Court ruled that blacks in the United States had no right to sue, as they were not citizens of the United States. It also tore down the Missouri Compromise, stating that the United States federal government could not outlaw slavery in the territories.

Needless to say, the two dissenting opinions were rather bitter.

Justice McLean: “Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen… Where no slavery exists, the presumption, without regard to color, is in favor of freedom… Does the master carry with him the law of the State from which he removes into the Territory?… A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence…”

Justice Curtis: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean.”

After the Civil War, with the passage of the 13th, 14th, and 15th amendments, the Dred Scott Decision was overturned

Plessy v. Ferguson, May 18, 1896:

On June 7, 1892, an octoroon (7/8 white and 1/8 black) named Homer Plessy was arrested for sitting in an all-white railcar in Louisiana. Plessy argued before the Court that his rights had been violated under the Fourth, 13th, and 14th amendments, providing him with equal treatment as a citizen. The Court, 7-1, ruled against him, stating that separate but equal facilities did not violate Plessy’s rights to equal treatment. However, the Court failed to achieve a unanimous ruling, with Justice Harlan penning his famous dissent.

Justice Harlan: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved… If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race.”

Harlan’s dissent would stand as a testament to his advanced views on civil rights until Brown v. Board of Education confirmed his views 58 years later.

Olmstead v. United States, June 4, 1928:

In 1924, Roy Olmstead and his associates, famous bootleggers of the Prohibition Era, were arrested after incriminating evidence was collected about their bootlegging activities. The evidence was collected via wire-tapping. The Court found the evidence permissible in court and upheld the convictions. Wire-tapping was officially sanctioned by the Supreme Court in a divided 5-4 decision. Justice Brandeis took the lead on the dissent, promoting the idea of a right to privacy implied by the Constitution.

Justice Brandeis: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

The Court would eventually declare wire-tapping an unconstitutional seizure under the Fourth Amendment in the 1967 Katz v. United States decision.

Minersville School District v. Gobitis, June 3, 1940:

With the specter of war circling Europe in the late 1930’s, a conflict developed between patriotic school boards and faithful Jehovah’s Witnesses: could Jehovah’s Witnesses, who deemed saluting earthly symbols as sacrilege, be forced to salute the American flag in schools? The Gobitas family (there was a spelling error in the case filings) was forced to find out when their two children William and Lillian were expelled after a long period of harassment and discrimination in the school system for refusing to salute the Flag. The Supreme Court ruled 8-1 that the school board was allowed to order students to salute. The lone dissenter, Justice Stone, issued this compelling dissent.

Justice Stone: “It is said that since the Minersville School Board and others are of the opinion that the country will be better served by conformity than by the observance of religious liberty which the Constitution prescribes, the courts are not free to pass judgment on the Board’s choice… The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to that justice and moderation without which no free government can exist.”

On June 14, 1943, the Supreme Court overruled the Gobitis decision in the 6-3 West Virginia State Board of Education v. Barnette decision.

Korematsu v. United States, December 18, 1944:

Shortly after the Japanese attack on Pearl Harbor, the Roosevelt administration authorized Executive Order 9066, forcing the internment of all people of Japanese descent on the West coast. Fred Korematsu deliberately violated the order to report and be relocated, and argued that his 5th amendment right to due process had been denied. The court, in a 6-3 decision, upheld the internment order on the grounds of military necessity. The lone Republican of the Court, Justice Roberts, was joined by Justice Murphy and Justice Jackson in issuing their racial-charged dissents.

Justice Jackson: “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens…”

The Korematsu decision was never overturned, though Korematsu himself had his personal conviction overturned on November 10, 1983.

Abington School District v. Schempp, June 17, 1963:

Edward Schempp was a Unitarian Universalist who filed a suit against the local school board for forcing his son to read the Bible before class every day. The Bible reading was mandatory under state law. In an 8-1 decision, the Supreme Court found the statute to be a violation of the plaintiff’s First and 14th amendment rights. The contentiousness of the decision is reflected in Justice Stewart’s dissent.

Justice Stewart: “It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.”

The decision paved the way to ending school-lead prayer in public schools. Today, Stewart’s dissent is cited by activists who wish to return faith a prayer to public schools as a testament to the inherently religious nature of the United States and her people.

FCC v. Pacifica Foundation, July 3, 1978

In 1973, John Douglas was driving with his son in the early afternoon when the radio began playing a sketch by the irreverent comedian George Carlin, Seven Words You Can Never Say on Television. John Douglas, in support of the FCC, argued that the radio station had illegally played obscene material on public airways and that his son had been exposed to words his father would never have allowed him to hear. The Court ruled 5-4 that the indecent (not obscene) nature of the sketch limited its First Amendment protections, and allowed the government a heavier hand in regulating it.

Justice Brennan: “The Court’s balance, of necessity, fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority. No decision of this Court supports such a result. Where the individuals constituting the offended majority may freely choose to reject the material being offered, we have never found their privacy interests of such moment to warrant the suppression of speech on privacy grounds.…It is quite evident that I find the Court’s attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. … It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain.”

Carlin’s sketch helped enshrine The Carlin Warning, in which broadcasters tell their guests which words are not permitted during an interview.

Lawrence v. Texas, June 26, 2003

On September 17, 1998, John Lawrence was arrested when the police, responding to a false 911 call, entered his house and discovered him engaging in a sexual act. Under Texas anti-sodomy laws, such acts were illegal. The Supreme Court ruled 6-3 that the Texas statute was an unconstitutional intrusion into the private life of American citizens. Justice Scalia was amongst the dissenters.

Justice Scalia: “At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,’ and then declares that ‘[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.’ …. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), ‘w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’ what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution,’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.”

Scalia’s dissent proved prophetic, though not as he may have wished. On June 26, 2015 the Obergefell v. Hodges decision legalized gay marriage nationally. Scalia’s dissent was, apparently, highly compelling.

IMAGE: Brandeis
Justice Louis Brandeis

For more on this story go to: https://constitutioncenter.org/blog/looking-back-famous-supreme-court-dissents