Constitutional Law Foreword 122 Harv. L. Rev. 4

Demosprudence Through Dissent


It is morning, June 28, 2007, in the august amphitheater of the United States Supreme Court. Three prominent black civil rights lawyers wait expectantly. They, along with members of the press and public, are here to bear witness to the Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1. The case involved two cities separated by thousands of miles: Seattle, Washington, and Louisville, Kentucky. Local communities in these far-flung locales had voluntarily attempted to integrate their public schools.

On this, the last day of his first full Term, Chief Justice John Roberts gavels the room to order. He then strikes down the plans in a matter of sentences. On behalf of himself and four colleagues, he declares Seattle’s and Louisville’s voluntary school integration plans unlawful because they consider race as a factor in student assignment. With a simple maxim, Chief Justice Roberts and his colleagues destroy what had taken the cities years to build: “The way to stop discrimination on the basis of race,” his argument goes, “is to stop discriminating on the basis of race.”
Moments after Chief Justice Roberts finishes speaking, a voice both incredulous and distressed pierces the High Court’s etiquette. Bristling with barely concealed anger but tempered by the circumspection of the law professor he once was, Justice Stephen Breyer informs those assembled that he takes strong objection to Chief Justice Roberts’s pronouncements of the law. Justice Breyer, too, offers a simple statement: “The majority is wrong.”

On a nine-person bench where the give and take between judges and lawyers usually involves rapid-fire exchanges, Justice Breyer proceeds to “hold court” alone for the next twenty-one minutes. No lawyers stand before him; no one is poised to answer questions or to persuade him of one side or the other. Indeed, joined in his dissent by Justices Stevens, Souter, and Ginsburg, Justice Breyer is not asking questions. Instead, he forcefully challenges Chief Justice Roberts’s view of “the law” of the land. “The majority is wrong” to conclude that consideration of race is per se unlawful. To the contrary, when used to include rather than exclude, taking race into account is constitutional. The plans in question, adopted democratically to overcome racial isolation by creating racially diverse schools, are “partly remedial, partly educational, partly civic.” “These plans are not affirmative action plans,” he explains. “School placement here has nothing to do with any students’ merits. . . . Until today the law has allowed school districts to implement these kinds of plans.” The Supreme Court has routinely given “significant practical leeway” to democratically elected school boards to make educational policy that “tries to bring people together.” The five Republican appointees, he suggests, are dictating their own policy preferences in the name of the law. Justice Breyer denounces Chief Justice Roberts’s temerity with sixteen memorable words: “It is not often in the law that so few have so quickly changed so much.”
In this Foreword, the author argues that oral dissents, like the orality of spoken word poetry or the rhetoric of feminism, have a distinctive potential to root disagreement about the meaning and interpretation of constitutional law in a more democratically accountable soil. Ultimately, they may spark a deliberative process that enhances public confidence in the legitimacy of the judicial process. Oral dissents can become a crucial tool in the ongoing dialogue between constitutional law and constitutional culture.