Sometimes the Supreme Court makes mistakes. Sometimes it later fixes them. But it doesn’t always admit it.

It can be a tricky thing for members of a respectable institution to admit that they or their predecessors on the same bench were wrong. Do it seldom; the Court loses credibility, especially when the overruling is plainly visible. Do it too often; the Court appears less continuous, and therefore subject to drastic change upon a new appointment. Very few things under the sun are brand new, and the stability of the Court has largely come from the fact that it doesn’t usually change too much too fast. Supreme Court justices take their jobs seriously. Precedent and prior holdings from most cases are generally respected, and most of the issues they face each term do not have clear answers.

So when courts reverse prior precedents, there are ways to save face. They usually default to alternative explanations to explain why they’re doing it. “The Court has learned something new” or “Congress has done something since our last decision” or “the issue was never settled, and the prior rule has come to mean something different today than it did before.”

In other words, the Court was never wrong. No mistake was made, and no one’s legacy will be tarnished or cast upon the sacrificial sword, no matter how bad the precedent was.

But sometimes, the mistake of the Court is obvious from day one. When that happens, as the late Justice Antonin Scalia once said in a speech, it can be comforting to know that there was at least one justice who saw the error plainly, recognized the danger, and gave voice, sometimes eloquent voice, to the concern.

That opinion is usually called a dissent.

The greatest dissent in American history is a tie between Justice Robert Jackson’s dissent in Korematsu v. United States and Justice John Marshall Harlan’s lone dissent in Plessy v. Ferguson. Both were cases of tremendous national importance and horrific consequence. In Korematsu, the Court upheld President Roosevelt’s racist executive order interning people on the West Coast for the crime of being Japanese descendant. In Plessy, the Court made up a doctrine called “separate but equal” to allow Louisiana to keep and enforce a racist law requiring white people and black people to sit in separate cars of a train. One of those two precedents – Korematsu – was repudiated in dicta (judicial say-so) in Trump v. Hawaii. The other – Plessy – was overruled in the landmark case of Brown v. Board of Education.

In Brown, the Supreme Court ruled in 1954 that racial segregation in public schools, regardless of how “equal” they purported to be, was a violation of the Equal Protection Clause of the 14th Amendment. The ruling was unanimous – one opinion by Chief Justice Earl Warren, joined by all eight associates (some more reluctantly than others) – and devastating to the Jim Crow social hierarchy that had plagued the nation for a near century. Legends are told of how Chief Warren worked tirelessly to ensure that there were no other opinions, especially a dissent that could be seen as legitimizing segregation or keeping it alive as a serious model of public policy. You can read about that here. What the Court did in Brown v. Board was to fix the near-60 year old mistake it had made in Plessy. There was just one problem: no one admitted the mistake.

On Separate Opinions

Some authors spend their whole lives looking for publishers to give them carte blanche and total independence. Supreme Court justices do not have that problem. They can write whatever they want, as much as they want, and some make use of that privilege more than others.

A future entry will adopt more precise labels instead of the crude “liberal” and “conservative” labels I’ll be using here. Liberals tend not to write separately – preferring to coalesce around one principal opinion (majority or dissent) as a show of solidarity and unity. They view individual dissents similarly to how John Marshall did – indulgences unbefitting a judge who is supposed to be a team player. Marshall hated separate opinions so much that he not only joined majority opinions he disagreed with; he authored some. Conservatives, on the other hand, are habitual separate opinion authors. Download a PDF of a Supreme Court decision: if the whole thing is 100 pages long, and the majority opinion is 25, you can blame them for the fact that the file is big enough to crash your hard drive.

Why do they do this?

The worst argument to write separately is when you have nothing to say that was not already said by the majority, and you’re just showing off. My favorite example of this was in the Masterpiece Cakeshop case (NIFLA v. Becerra), where California tried to force pro-life pregnancy centers to advertise for free and low-cost abortions. In one of the last opinions he wrote before his retirement, Justice Anthony Kennedy – not usually known for writing separately – issued a concurrence that was essentially an attack on the state of California for its viewpoint discrimination. He wrote it like he wished he could hold it in contempt of the Supreme Court. I agreed with its content, but the punditry was unnecessary.

But a well-written, functional separate opinion can be fun to read.

For a judge on the federal courts of appeals, or state appellate court, a dissent has the function of warning other circuits or state jurisdictions off the majority opinion. It is a signal of disagreement, a bone of encouragement for the losing side to keep litigating. On the Supreme Court, separate opinions are written for the casebooks and textbooks. Law schools teach the cases where the disagreements are sharpest. A dissent keeps the case relevant – a subject of study in legal academia, which prompts scholars to write law reviews that may later be cited in judicial decisions.

A separate opinion can change the legal culture or perhaps the law itself. In a 1928 case called Olmstead v. United States the Supreme Court held that the 4th Amendment didn’t bar the police from wiretapping private phone conversations. In dissent, Justice Louis Brandeis designed a more expansive “right to privacy” that the Court eventually adopted in a case called Katz v. United States. A compulsive sports gambler in a closed phone booth was illegally giving bookies his handicaps. The feds had bugged the booth from the outside. The Court in Katz called that a search.

Funny thing about the Katz case – no one pays much attention to the majority opinion. The best concurrence, written by Justice John Marshall Harlan II, “became” the law by stating the Court’s rule more efficiently than the majority did. The majority in Katz had droned on about how a phone booth might be “a protected area” and whether it mattered that the feds were not “trespassing.” In his concurrence, Harlan II cut through the excess, and stated the rule: Mr. Katz exhibited an actual (subjective) expectation of privacy, and society recognizes that expectation as reasonable. Intrude upon that without a warrant, and you’ve committed a search. That concurrence is now recognized as the Katz Doctrine.

Within the Court, separate opinion drafts usually improve the strength of the majority opinion by giving its author the opportunity to respond to points of attack and to questions or concerns about its meaning and reach. Judges who write separately must articulate their justification for doing so, which forces them to think systematically and in totality about not only the case in front of them, but the entire body of law they must understand to resolve it.

And when a majority opinion is written against a dissent, it secures the perception that the decision is the product of care and thoughtful deliberation. That which doesn’t kill you only makes you stronger. And many of the Supreme Court’s unanimous opinions end up ringing hollow for want of a challenger.

So about Segregation…

I bring up all this because Brown v. Board is actually a pretty lame opinion.

It is, ironically, a victim of its unanimity. It is terse, irrationally narrow, and written with haste. And through it, the Court chickened out of admitting something important: the “separate but equal” doctrine announced in Plessy was wrong. It was badly wrong immediately, and it remained wrong for 58 years.

The Chief Justice’s opinion in Brown reads like this: (1) the “separate but equal” doctrine comes from Plessy, which is a case “involving not education, but transportation.” Six other cases apply the doctrine to education, and none contradict Plessy. But they are all different because here the segregated schools in Topeka really are tangibly equal. (2) “In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” (3) Here are all the ways that education is a uniquely important aspect of American life, and why racial segregation is so harmful to it. Therefore the Court is now prepared to declare that racial segregation in public schools deprives people of the equal protection of the law, and that “any language in Plessy v. Ferguson contrary to this finding is rejected.”

In other words, the “separate but equal” doctrine was not necessarily wrong in 1896. But it’s wrong today when it applies to public education because the Court has learned so very much about it over the past 58 years. This would be of little comfort to the black train car passengers in Louisiana. Sorry, folks; segregation just isn’t as big a deal in the train cars as it is in public schools.

If a rule is only wrong because of what you know now about one specific issue to which you determine it cannot apply, that implies that there may conceivably exist a scenario in which the rule was right.

But it wasn’t right. It was never right. And what the Chief and his unanimous court proclaimed in Brown to have learned over six decades was already apparent to Justice Harlan I, the Court’s only southerner, who had seen the effects of Jim Crow firsthand, understood what it did to the races affected by it, and had written it all down in that marvelous dissent. Yet in Brown, Harlan’s dissent in Plessy is not cited even once. The doctrine of “separate but equal” is neither attacked nor scrutinized. And Harlan’s critique of it was never mentioned or acknowledged.

Part of the problem was, as Justice Clarence Thomas has said, no one after Harlan in Plessy, including Harlan himself, continued to write about the ongoing problem of segregation. There should have been in those six decades at least one justice who challenged the legitimacy of the “separate but equal” doctrine, who called the ruling of Plessy into question, and who did not quietly let it stand simply because it was something the Court had decided.

But even without that, there should have been at least one separate concurrence in Brown that admitted the Court’s past mistake. A separate concurrence that gave Harlan I his due, vindicated his dissent, and asserted that segregation was not just unconstitutional when implemented in the public schools; it was unconstitutional everywhere. Would it have been little more than symbolic? Possibly. But it also would have augmented the legitimacy of Brown’s holding. It would have highlighted the narrowness of the main ruling while still depriving the segregationists of any judicial safe harbor.

And it would have been a great thing to read.

– Vivek