How Many Times Should a Justice Dissent on the Same Issue? Law Prof Hits ‘Perpetual Dissents'
Should justices who dissent from a U.S. Supreme Court decision continue to stick to their position when related issues come before them?
Justices who remain wedded to their losing views are taking an approach dubbed a “perpetual dissent,” the New York Times reports. “Whether as a matter of principle, pique or personal privilege,” the newspaper says, “justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.”
William & Mary law professor Allison Orr Larsen studied the issue, and found that every justice on the court from 1986 to 2005 had issued perpetual dissents. Often the opinions were issued in an attempt to remain consistent, she said in an article about her findings published in 2008 in the George Mason Law Review.
Larsen suggests the practice should not be overused. “Opting to repeat a dissent because of continued distaste for a controlling precedent—regardless of the reason for the distaste—is difficult to reconcile with the deeply rooted American principle that a court ordinarily must follow its previous decisions to preserve its public legitimacy,” she wrote.