Today's post is from Mark Tushnet, author of I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. Previously a professor of law at Georgetown University and University of Wisconsin, Tushnet is the author of numerous books, including A Court Divided: The Rehnquist Court and the Future of Constitutional Law.
I've been doing some research on the Supreme Court during the 1930s, and have run across some interesting comments from Justice Harlan Fiske Stone on dissenting. Stone was a progressive Republican appointed to the Court by Calvin Coolidge. He served as an Associate Justice under Chief Justices William Howard Taft and then Charles Evans Hughes, before Franklin Roosevelt appointed him Chief Justice in 1941.
During the 1920s, Taft ruled the Court with a firm hand, and strongly discouraged dissents. And, even after Hughes took over, it was common for a justice to dissent with a simple notation: "Agreeing with the court below, I dissent," or the like. As the 1930s went on, though, the number and length of dissents increased.
The reason, pretty clearly, was that liberal and progressive dissenters were increasingly dismayed at what they saw as the majority's radical conservatism. Yet, that explains dissenting but not really writing long dissents. And Stone, in private correspondence, fumbled around for explanations for his practice.