Justice Brennan and the Jurisprudence of Dissent

47 Pages Posted: 9 Dec 2011

See all articles by Laura Ray

Laura Ray

Widener University - Delaware Law School

Date Written: 1988

Abstract

In his thirty-one years on the Supreme Court, Justice Brennan has evolved from a strong member of the Warren Court majority to a steady dissenter on the Burger Court. In that process, Brennan has developed a theory of dissent as a mark of judicial integrity that obligates him to repeat his minority position on several issues - obscenity, the death penalty, double jeopardy, the eleventh amendment, the rights of criminal defendants - in the face of entrenched majority rejection. Brennan avoids, however, the danger of simply restating his basic disagreement each time an issue recurs; instead, he continues to engage the majority by offering detailed and systematic critiques of its positions. A review of his dissenting opinions reveals several distinct purposes they serve. Dissent allows Brennan to keep alive doctrine altered or eradicated by the Court; to provide a medium for the continued development of his views on such difficult subjects as obscenity and standing in the hope of persuading his colleagues; to present a form of organized and principled resistance to many of the Court's doctrinal changes; and, finally, to serve as a mentor to state courts, urging them to rely on their state constitutions to provide broader rights than some of the Court's restrictive readings would allow.

Keywords: William J. Brennan, Supreme Court, justices, judges, dissent

JEL Classification: K1

Suggested Citation

Ray, Laura, Justice Brennan and the Jurisprudence of Dissent (1988). Temple Law Review, Vol. 61, No. 2, 1988, Available at SSRN: https://ssrn.com/abstract=1968460

Laura Ray (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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