Justice Brennan and the Jurisprudence of Dissent
47 Pages Posted: 9 Dec 2011
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: Suggested Citation