On the Evolution of the Canonical Dissent

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes\u27s in Lochner v. New York, and Justice Harlan\u27s in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations. Specifically, the Article argues that the canonization of dissenting opinions began as a New Deal phenomenon-linked to the public rejection of the Old Court\u27s economic rights jurisprudence, as embodied in the majority opinion in Lochner v. New York. The canonization of Holmes\u27s Lochner dissent, it is shown, was a product both of progressive intellectuals eager to usher in the New Deal, and of a judicial desire to memorialize the popular repudiation of the Old Court\u27s philosophy. Other early canonizations of dissent followed the Lochner pattern, emerging only as responses to popular rejections of old precedents. But as time wore on, the Court began developing a new kind of canonization, whereby justices consciously lifted and adopted principles articulated in dissenting opinions of yore as authority for the formulation of new constitutional rights and rules. Several civil liberties dissents (involving, inter alia, First and Fourth Amendment rights) thus became canonized even before the majority opinions which they criticized had been overruled. The Article ends with a look at what the evolution of the dissenting canon teaches about the shape of the constitutional canon as a whole-noting, for instance, the central role that political conflict plays in the creation and elevation of canonical texts