ERIC Identifier: ED379205 Publication Date: 1995-01-00
Author: Leming, Robert S. Source: ERIC Clearinghouse for
Social Studies/Social Science Education Bloomington IN.
Teaching about Landmark Dissents in United States Supreme Court
Cases. ERIC Digest.
Since the Marshall Court in the early nineteenth century, the U.S. Supreme
Court has issued a single opinion indicating its decision in a case. The Court
disposes of each case it reviews by majority rule (typically either affirming or
reversing) and provides a rationale for its decision. The disposition and
rationale are both critical elements of the Court's decision. In providing
reasons for its decision, the Court may offer constitutional interpretations
which have a significant impact on American law and society. Moreover, what
often makes Court cases compelling as human drama is that they typically involve
real people engaged in disputes which have been brought to the justice system
for resolution. This is the "disposition" of a case.
In cases where some justices do not agree completely with the Court's
decision, they may write or join concurring and dissenting opinions. In
"concurring" opinions, justices agree with the majority regarding the outcome of
the case, but disagree, in some way, with the reasons that support the outcome.
In "dissenting" opinions, justices disagree with the outcome of the case and
present rationales for their views. Justices offer reasons for their decisions
based upon their understanding of law, history, and policy.
Unlike the Court's majority opinions, dissents have no legal force.
Typically, they simply provide justices disagreeing with the majority an
opportunity to express their dissatisfaction with the outcome and explain their
disagreement. Nevertheless, dissenting opinions can have a greater impact. For
instance, they might encourage federal legislation to reverse or limit the
Court's decision. Moreover, dissenting justices may hope to influence,
ultimately, the Court itself in future decisions. While the Court typically
follows its own precedents in deciding cases (under the established judicial
principle of "stare decisis" or "let the decision stand" in Latin), it has, on
occasion, overturned or significantly modified its own earlier decisions. In
exceptional cases, dissents have attained landmark status in American legal
history in that they influenced subsequent reversals by the Court or otherwise
have come to articulate revised opinions of the Court on significant matters of
constitutional interpretation and public policy.
INFUSION OF LANDMARK DISSENTS INTO THE CURRICULUM
dissents, those which influenced subsequent Court decisions, should be included
prominently in United States history and government courses. Notable examples
are the dissenting opinions in Plessy v. Ferguson (1896), Olmstead v. United
States (1928), Minersville School District v. Gobitis (1940), and Betts v. Brady
One of the most influential dissents was crafted by Justice John Marshall
Harlan in the 1896 case of Plessy v. Ferguson. Homer Plessy, acting on the
behalf of a Louisiana Citizen's Committee formed to protest laws established to
keep blacks and whites separate, bought a first-class ticket on a Louisiana
train. Plessy, who had one great-grand parent of African descent, boarded the
train and sat in a railroad car reserved for whites only, ignoring the coach
marked "colored only." After refusing to change seats, Plessy was arrested for
violating the Car Law requiring separate railroad seating for blacks and whites.
The central issue in this case involves the question of whether or not the
state law requiring separate railroad accommodations violated the 13th
Amendment's outlawing of slavery or the 14th Amendment's guarantee of equal
protection of the laws for all citizens. The Supreme Court ruled against Plessy,
holding that the "equal protection of the laws" clause of the 14th Amendment
allowed "separate but equal" facilities for blacks. The Court also ruled that
the Separate Car Law did not violate the 13th Amendment's ban on slavery.
The lone dissent in Plessy was written by Justice John Marshall Harlan who
wrote, "But in view of the Constitution, in the eye of the law, there is in this
country no superior class of citizens. There is no caste here. 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." Justice Harlan,
who had been a slave owner from Kentucky, warned future generations against the
evils of giving a legal sanction to class distinctions.
In 1954 the Court, in line with Justice Harlan's dissent, finally ended over
50 years of "separate but equal" legislation with the Brown v. Board of
Education ruling which struck down laws that enforced racial segregation in
In the 1928 U.S. Supreme Court case of Olmstead v. United States, decided by
a 5-4 vote, Justice Louis Brandeis's dissenting opinion argued for a
constitutional right to privacy and warned future generations about the
advancement of technology and its possible intrusion into constitutionally
protected areas. In 1924, Mr. Ralph Olmstead stood accused of violating the
Volstead Act (1920) which outlawed the transportation or sale of alcoholic
beverages anywhere in the United States. The evidence against Olmstead was
gathered through the use of electronic wire-tapping of Olmstead's office and
home. Olmstead claimed his Fourth and Fifth Amendment rights had been violated.
Olmstead believed the search of his house and office was illegal and that his
conversations should not be used to self-incriminate him in court. The U.S.
Supreme Court, however, did not agree with Olmstead. Chief Justice William
Howard Taft argued that the search of Olmstead's property did not violate the
Fourth Amendment's protection against unreasonable searches and seizures because
the police did not physically enter Olmstead's house or office and seize
physical evidence. Rather, the police overheard telephone conversations over
"...wires reaching into the whole world from the defendant's house or office."
Justice Louis Brandeis, one of four justices dissenting in this case wrote,
"The progress of science in furnishing the Government with means of espionage is
not likely to stop with wire-tapping. Ways may some day be developed by which
the Government, without removing papers from secret drawers, can reproduce them
in court, and by which it will be enabled to expose to a jury the most intimate
occurrences of the home." Justice Brandeis further argued that the "right to be
let alone" was the most important right available to mankind.
Forty years later the U.S. Supreme Court embraced Brandeis's opinion in the
1967 Katz v. United States case which overturned the Olmstead decision. The Katz
decision (7-1) concluded that wiretaps and other types of electronic
surveillance were unconstitutional because they violate an individual's right to
be protected against unreasonable searches and seizures.
In 1940, the Court decided the case of Minersville School District v.
Gobitis, which upheld a flag salute requirement for students attending a public
school. Two students, Lillian and William Gobitis, were members of the Jehovah's
Witnesses faith, which believed that saluting the flag was a crime against God.
They were expelled from school for not saluting the American flag. The Court, in
its 8-1 decision, argued that religious freedoms must yield to state authority
as long as the state was not directly restricting or promoting religion. Justice
Harlan Fiske Stone dissented, arguing that religious freedom was outside the
jurisdiction of the government. Three years later, in a 6-3 decision, the Court
reversed itself in West Virginia State Board of Education v. Barnette. The
decision was reversed, in part, because Justice Stone had become the Chief
Justice and two new members had joined the Court.
In 1942, Justice Hugo Black dissented in the Betts v. Brady case, decided
6-3, by arguing that defendants in state courts should have the same right to
counsel that defendants do in federal courts. Justice Black's dissent relied on
his own opinion in an earlier case, Johnson v. Zerbst (1938), when he wrote,
"The Sixth Amendment stands as a constant admonition that if the constitutional
safeguards it provides are lost, justice will not 'still be done.' It embodies a
realistic recognition of the obvious truth that the average defendant does not
have the professional legal skill to protect himself when brought before a
tribunal with power to take his life or liberty." The Court, however, rejected
Black's argument, refusing to extend the right of counsel to defendants in
noncapital felony cases at the state level.
Justice Black's opinion became the majority view in 1963 when the Court
overturned Betts in Gideon v. Wainwright in a 9-0 decision. In Gideon, the Court
ruled that the Sixth Amendment, as applied to the states by the Fourteenth
Amendment, required that indigent defendants charged with serious offenses in
state criminal trials must be represented by counsel.
INSTRUCTIONAL STRATEGIES FOR TEACHING DISSENTS
A moot court
simulation is a very exciting method that involves students in a role play of
the United States Supreme Court. Students are exposed to the opinions developed
by the Supreme Court Justices and are given the opportunity to develop their own
arguments and express them in written and oral forms. A moot court simulation
allows for historical connections to be made between cases and their effect on
the American judicial system and American society.
Another effective instructional strategy is the case study method, in which
students are encouraged to carry out the following steps: review the background
information and the facts; determine the main issue(s); examine different
arguments on the issue; consider the decision (with majority and minority
opinions) and legal reasoning; and assess the implications and historical
significance of the case.
REFERENCES AND ERIC RESOURCES
The following list includes
references used to prepare this Digest. The items followed by an ED number are
available in microfiche and/or paper copies from the ERIC Document Reproduction
Service (EDRS). For information about prices, contact EDRS, 7420 Fullerton Road,
Suite 110, Springfield, Virginia, 22153-2842; telephone numbers are (703)
440-1400 and (800) 443-3742. Entries followed by an EJ number, announced monthly
in the CURRENT INDEX TO JOURNALS IN EDUCATION (CIJE), are not available through
EDRS. However, they can be located in the journal section of most libraries by
using the bibliographic information provided, requested through Interlibrary
Loan, or ordered from the UMI reprint service.
Cortner, Richard, et al. THIS HONORABLE COURT: TEACHER'S GUIDE. Arlington,
VA: Greater Washington Educational Telecommunications Association, Inc., 1988.
ED 298 025.
Hickey, M. Gail. "Mock Trials for Children." SOCIAL EDUCATION 54 (January
1990): 43-44. EJ 404 424.
"Judicial Review--How Judges Decide." UPDATE ON LAW-RELATED EDUCATION 14
(Winter 1990): 27-30. EJ 409 545.
Long, Gerald P. CONSTITUTIONAL RIGHTS OF JUVENILES AND STUDENTS: LESSONS FROM
16 SUPREME COURT CASES. Bloomington, IN: ERIC/ChESS, 1994. ED 374 070.
Page, Melvin, et al. "From Plessy to Brown." UPDATE ON LAW-RELATED EDUCATION
15 (Fall 1991): 12-13. EJ 450 750.
Patrick, John J. THE YOUNG OXFORD COMPANION TO THE SUPREME COURT OF THE
UNITED STATES. New York: Oxford University Press, 1994. ED 368 670.
Roach, Carol. "A Famous Kansas Child." UPDATE ON LAW-RELATED EDUCATION 14
(Winter 1990): 45-47. EJ 409 549.
Wolcott, Lisa. "Their Day in Court. Students Learn about America's Legal
System by Taking Part in It." TEACHER MAGAZINE 2 (March 1991): 24, 29. EJ 427