After Supreme Court Justice Antonin Scalia ’60 died in 2016, his colleague Justice Ruth Bader Ginsburg reflected on their friendship and recalled how, despite often disagreeing on the law, she nonetheless respected Scalia’s “pungent, eminently quotable opinions, so clearly stated that his words rarely slipped from the reader’s grasp.”
In other words, sometimes, an opinion is admirable not necessarily for its holding — but because of the force of its words or the paths it takes to its conclusion.
As we gear up for a new Supreme Court term, which begins on Oct. 5, four Harvard Law School faculty members tell us about decisions or opinions they disagree with, but which they respect for other reasons, including great writing, intriguing arguments, or even navigation of a jurisprudential “grand slalom course.”
Kenneth W. Mack ’91, Lawrence D. Biele Professor of Law
Justice Louis Brandeis’ famous 1927 concurring opinion in Whitney v. California is one which I have long admired, but aspects of which I have found myself in disagreement. In Whitney, the Supreme Court upheld a conviction, under California’s Criminal Syndicalism Act, of a political activist named Anita Whitney, who was charged under the statute following a speech where she advocated for Black equality and criticized lynching. Local authorities essentially tried her for her political beliefs, branding her a dangerous radical because of her association with the Communist Labor Party, and the Court focused on that association in declining to overturn her conviction.
Brandeis, joined by Justice Holmes, wrote an impassioned opinion concurring in the Court’s judgment on procedural grounds but dissenting in substance. His words are rightly admired: “Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. … They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
“Those who won our independence by revolution were not cowards,” he wrote later in the opinion in celebrating the speech and assembly protections of the Constitution.
It is a beautifully written opinion, and Brandeis’ vision of a society of “free men” — the term he used — exercising deliberation to arrive at truth and improve themselves has much to commend it, although we might rephrase it a bit in our times. Moreover, he, along with Holmes, rightly saw the expansion of government capacity to do social good in the 20th century brought with it an increased capacity to suppress ideas and beliefs that elected leaders disfavor — another lesson of relevance to the present day.
I am largely sympathetic to Brandeis’ rationale for his reading of the Constitution’s speech and assembly protections, and I admire the power of his celebrated prose. However, I find myself dissenting from his enlistment of the supposed beliefs and intentions of the founding generation as the primary evidence for this claim. Brandeis was writing at a time of great fear and repression of leftist radicals in the name of patriotism. It is only natural that he turned to a familiar source of persuasive authority. He understandably indulged in the common effort to make the beliefs and words of the Americans who participated in the Revolutionary War and the creation/ratification of the Constitution (themselves two different things) into evidence for their own interpretations of the Constitution.
But he was writing without the benefit of subsequent scholarly research that should leave one skeptical about broad claims of unified belief, or unified meaning, among Americans of that period. Many people during that era shared certain commitments, but they often fought with each other as much as they fought for or against something — as viewers of Ken Burns’ recent series on the Revolution, incorporating recent scholarship, has made plain for a broad audience. They argued over contrasting views of constitutionalism. This is a tempting rhetorical move, and one that has been quite popular in many periods of American history. Brandeis wasn’t the last to make it. But history is complex and contested, especially the history of a period during which Americans fought a war, founded a republic, recreated its structure with a Constitution, and made a series of compromises along the way that bedevil the country to this day. The outcome of these efforts is bound to be messy and complicated, despite the understandable temptation to mobilize it for particular objectives, whether praiseworthy or otherwise.
Rebecca Tushnet, Frank Stanton Professor of the First Amendment
Justice Ginsburg’s opinion in Eldred v. Ashcroft did not reach the outcome I wanted, but it is carefully grounded in both history and practical considerations, paying attention to the overall structure of copyright law in ways that I miss more now that they’re gone.
Sanford Levinson, Visiting Professor of Law
I always enjoyed teaching Home Building & Loan Assoc. v. Blaisdell (Minnesota mortgage moratorium) case of 1934 because it features two genuinely great opinions. I agree with one of them, by Chief Justice Charles Hughes upholding the legislation, and disagree with the other, the dissent by Justice George Sutherland. But Sutherland’s opinion is superbly written and argued, especially with regard to what we now call “original public meaning” and the resultant invalidity of Minnesota’s impairment of the obligation of contracts. The Hughes opinion basically added the word “unreasonable” to the Contract Clause and then determined that Minnesota’s law was “reasonable” as a response to the Great Depression. Sutherland had no patience for such an argument and the judicial rewriting of what he deemed plain text and ignoring clear history. And, for what it is worth, I found that an increasing number of students, unlike myself, were more persuaded by Sutherland than by Hughes.
Mark Tushnet, William Nelson Cromwell Professor of Law Emeritus
I like Justice Alito’s opinion for the Court in Matal v. Tam. What I like about the opinion is the combination of good solid legal reasoning with the insouciant treatment of a difficulty that might prevent Justice Alito from getting to the result he wants. When I taught the case, I used it to illustrate and expand on what Duncan Kennedy wrote about the phenomenology of judging.
The case held unconstitutional on free expression grounds a statute prohibiting the registration of trademarks that “disparage” people. Tam, an Asian American, wanted to register the name “Slants” for his rock group to, as he put it, reclaim the disparaging term for his community (and to increase the revenue the group could get from selling its merch).
To get to the result, Justice Alito had to — as I put it — navigate his way through a grand slalom course, starting at the top and threading his way through a fairly large number of gates. He works his way from the top of the slalom course, offering cogent reasons why one after another of the defenses the government offered for the statute failed. Then he got to what I think of the final gate — and he knocks down one of the flags. He comes up with a “reason” that’s transparently inadequate as stated. (He says that cash subsidies from the government are different from what he agrees are monetizable legal rights under a governmental regulatory system, but he doesn’t explain what the differences are. I think you can come up with some but, perhaps tired out from the slalom course, he didn’t try.)
I like the opinion because it provides a nice illustration of the strengths and limits of good legal reasoning.
Want to stay up to date with Harvard Law Today? Sign up for our weekly newsletter.