Great dissents by great Supreme Court justices

Some of the finest testaments to the ideal spirit of America have been impassioned dissents by Supreme Court justices.

Perhaps the greatest dissent ever written was by Justice Frank Murphy in In re Yamashita (327 U.S. 1, 1946). The case dealt with a Japanese general accused of war crimes. He was tried before a military commission, found guilty and hanged. The Supreme Court upheld the conviction.

But Murphy, refusing to yield to the passion and “anti-Jap” frenzy of World War II, dissented because General Yamashita had been denied due process. He wrote: “No exception is made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is.

“The immutable rights of the individual…belong not alone to the members of those nations that excel on the battlefield or that subscribe to the democratic ideology. They belong to every person in the world, victor or vanquished, whatever may be his race, color or belief…

“While peoples in other lands may not share our beliefs as to due process…we are not free to give effect to our emotions in reckless disregard of the rights of others.”

The Murphy dissent exemplifies what it truly means to be an American. Murphy’s dissent is a repudiation of false patriotism and ugly chauvinism. It is not draping your house with a huge American flag. It is not putting a flag on a pickup truck.

Another great dissent was written by Justice Louis Brandeis in Olmstead v. United States (277 U.S. 438, 1928). A majority upheld a conviction under a Washington state statute, declaring that wiretapping did not violate the Fourth Amendment prohibition against unreasonable searches and seizures. But Brandeis--possibly the best justice in court history--wrote:

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen…Our government is the potent, the omnipresent teacher…it teaches the whole people by its example…If the government becomes a lawbreaker, it breeds contempt for the law.”

If only President Bush today would heed the sterling words of Murphy and Brandeis.

The Great Dissenter himself, Oliver Wendell Holmes, penned a classic dissent in Abrams v. United States (250 U.S. 616, 1919). The court upheld the conviction of radicals who had distributed pamphlets calling for a general strike of munitions workers. The court declared that they were not protected by the First Amendment in wartime.

Holmes was furious that the radicals had been sentenced to 20-year jail terms for printing leaflets they had as much right to print as the government does to publish the Constitution. Moreover, he implied that they were convicted solely for avowing a creed that few others shared. Holmes concluded with this ringing declaration: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”

The Brandeis dissent in Gitlow v. New York (268 U.S 652, 1925) is another classic. When the court upheld a law barring incitement to overthrow the New York government, Brandeis wrote: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they should be given their chance and have their way.”

One of the great things about dissents is that justices sometimes argue the law of the future, not as the law was in their time but what it would become. Justice John Harlan I did so in Plessy v. Ferguson (163 U.S. 537, 1896). The court upheld Jim Crow laws, 7-1. But Harlan, dissenting, declared: “Our Constitution is color-blind.” His dissent became law with the school desegregation decision in 1954.

Justice Harlan Stone also argued the law of the future. In 1940 the court in Gobitis upheld compulsory flag-saluting in public schools. But Stone dissented vigorously. He declared that school children cannot be forced to make “affirmations which violate their religious conscience.”

Three years later Stone was vindicated, the court striking down a West Virginia compulsory flag-salute statute. In that decision, Justice Robert Jackson denounced the tryanny of the majority: “The very purpose of a Bill of Rights was to withdraw certain subjects from the viscissitudes of political controversy, to place them beyond reach of majorities and officials, and to establish them as legal principles to be applied by the courts.”

The great dissenters on the court have often been the greatest justices.