Legal News

Law Blog Chats With Scalia, Part II: ?Master of the Dissent?

By Dan Slater

Editor’s note: This is part two of the Law Blog’s interview Thursday with Justice Scalia about his new book, “Making Your Case: The Art of Persuading Judges.” See part one here. The final part will follow shortly.

Can we talk about your role on the Court? You’ve been called the master of the dissent. What do you think about that?
Well I’ve been forced into that position. [Laughter] I dissent a lot.

Do you view the judicial dissent as a form of advocacy?

Yeah, in a way. I’m advocating for the future. Who do you think I’m writing my dissents for? I’m writing for the next generation and for law students. You know, read this and see if you want to go down that road. We’d be better off on all sorts of issues – on legislative history, on originalism. But I’m not going to persuade my colleagues and I’m not going to persuade most of the federal bench. They’ve had this so-called living Constitution stuff, you know, from the time they were in law school. That’s not going to change. But maybe the next generation will see the advantages of going back to the way we used to do things.

There are not too many useful reasons to write a dissent, in this court anyway. Given the chance you have of persuading your colleagues, you should just go quietly. If you could just join the majority and say, “Justice Scalia dissents,” that’d make my life a lot simpler.

So why do you do it?

Well, I think one of the reasons this Supreme Court is so prominent – compared to the Supreme courts of other countries – is because of the dissent. The dissent combined with the case law system is the way the law is taught. You don’t have to write a commentary, and the professor doesn’t have to pick apart the opinion. You get both sides just from the U.S. report. So it’s somewhat of a self-contained academy here, and I think that gives us greater prestige.

Plus, dissents are just good. Look back at Korematsu [the 1944 case in which the Supreme Court upheld an executive order excluding Americans of Japanese descent from areas deemed critical to national defense]. Isn’t it nice to know that Robert Jackson – at least someone on the Court – saw how horrible it was? A dissent keeps you honest. Sometimes after a dissent circulates, some of the points are so obviously incorrect that the majority will cut back some of its broad principles. [Court-outsiders] don’t see what happens to the majority [opinion] before it goes out.

Part 3 will follow shortly.

Full post as published by Law Blog - WSJ.com on May 30, 2008 (boomark / email).