Dissenting from yourself


“He was not fitted intellectually or physically for the job.”

— Leon Friedman, historian on Justice Whittaker

“We need to be bold and adventurous in our thinking in order to survive.”

— Justice William O. Douglas

The current process of deciding who writes opinions and dissents in Supreme Court cases is nearly as old as the court itself. It involves seniority, and a lot of editing, and leads to one of the more interesting mysteries of Supreme Court lore.

The current court usually hears oral arguments in cases on Monday, Tuesday and Wednesday. They meet in chambers on Wednesday to discuss the cases they heard on Monday, and again on Friday to discuss the cases they heard on Tuesday or Wednesday. The schedule allows them a few days to digest what they heard, review the written briefs, and discuss the cases with their law clerks.

The discussion begins with the Chief Justice, who presents his opinion on the case and which way he thinks the case should be decided. From there, each Justice, in descending order of seniority, follows with his or her opinion about the case. These discussions are merely preliminary, and give the Justices a sense of how the vote on the case will turn out.

Once the Justices have a preliminary view of the case, writing assignments are then doled out. Whatever side of the case the Chief Justice is on, he gets to assign a Justice to write for that side, including the option of taking on the task himself. The senior most Justice on the other side of the case (assuming that the court is not unanimous) gets to assign the task of writing for that side.

The Justice assigned to write then sets to work composing a draft. They can pen that draft themselves, or they can delegate the writing to their clerks, though even in the latter case, the Justice will maintain close control of the content and theme of the writing. Once a draft is prepared, it circulates to the other Justices. They can then choose to join the draft opinion, switch sides to the opposing viewpoint, or write their own, separate opinion concurring with or dissenting from the majority. Sometimes, they’ll even go so far as to indicate they agree with all but specific paragraphs, sections, or even footnotes of an opinion.

Back in October of 1960, the court heard a completely unremarkable, largely forgotten, and nearly universally ignored case about the intersection of life insurance proceeds and federal income tax. It garnered little press at the time, and almost none since. But Meyer, et. al. v. United States became a source of legend among court watchers because of a claim later made by the court’s longest-serving Justice — William O. Douglas.

Following arguments in the case, the majority opinion was assigned to Justice Charles Evans Whittaker. He had a remarkably distinguished career and was the first person ever to serve at all three levels of the federal judiciary. But his Supreme Court tenure was short, and court historians have not been particularly kind to him.

The dissent was assigned to Justice Douglas, who served on the High Court for more than three-and-a-half decades. In the telling later, Douglas and his law clerks would say that he completed his dissent within a matter of days, circulated it, and then waited for Whittaker to pen the majority opinion. Days passed. Then weeks.

Dagmar Hamilton, a law professor at the University of Texas, helped Douglas write several books, including his autobiography. According to her, Douglas said he went to visit Whittaker to see what was holding up the opinion. Douglas reports that he found Whittaker pacing the floor in his office, unable to formulate his thoughts sufficiently to put pen to paper on the case.

Not wanting to delay the process any longer, Douglas agreed to help Whittaker by putting some notes together for the majority opinion. Instead, he ended up writing the entire thing. Whittaker made a few minor edits, signed his own name, and the opinion went out, with Justice Douglas having written the majority opinion that did not bear his name, and the dissenting opinion from it that did bear his name.

Whether the story is true or not, is subject of debate. Dr. Craig Alan Smith, of California University of Pennsylvania, wrote an entire article for the Journal of Supreme Court History in 2014, claiming that the story was a myth, and the writing styles suggestive that the opinions had different authors.

Justice Douglas died in 1980, and Justice Whittaker in 1973, so the truth of the matter may never be known. But legend says that Justice Douglas has the distinction of being the only Justice to argue both sides of the same case.

By David Hejmanowski

Contributing columnist

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.

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