Etched into the travertine marble of the Tribune Tower’s ornate lobby are a handful of quotations from the likes of Euripides, Junius and Daniel Webster.
They speak in praise of speech unfettered and extol the virtues of a press that is free. Called the Hall of Inscriptions, this collection of quotes inspires and soars, particularly if you happen to be a journalist on your way into work.
The quotations continue through two passageways that connect the lobby to the rest of the building. It is here that the Hall of Inscriptions becomes what could be called the Hallways of Dissent–a monument that should stir jurists as well as journalists, a reminder of how one principled justice can lose the day but win the tomorrows.
In legal writing, the dissenting opinion is often a thing of passion and beauty. Unlike majority opinions, dissents don’t speak with a collective voice. They don’t use language that has been negotiated and agreed upon, or language that treads lightly for fear that overly strong pronouncements could lose a vote or two and jeopardize the court’s majority.
In each of the Tribune hallways, there is an excerpt from a dissenting opinion penned by a late U.S. Supreme Court justice famed for writing such protestations. The justice quoted in the northernmost hallway is John Marshall Harlan Sr. The justice quoted in the southernmost hallway is Louis Brandeis.
Both justices wrote a string of dissenting opinions so elegant and powerful that their positions eventually became law and their phrases historical words of wisdom.
The dissents carved into the hallways exalt freedom of the press and stem from now-obscure cases unlikely to be found in history textbooks. Harlan and Brandeis consistently championed the 1st Amendment, but these were hardly their most famous dissents.
In one of the most celebrated opinions ever written, Harlan dissented–alone–from the Supreme Court’s infamous 1896 decision upholding a Louisiana law that required separate but equal accommodations for whites and blacks on passenger trains. “Our Constitution is color-blind,” Harlan wrote in protest.
As for Brandeis, he dissented in the 1928 case of Olmstead vs. United States, taking exception to the court’s ruling that eavesdropping on telephone conversations did not constitute a search and seizure under the 4th Amendment. The Constitution, Brandeis wrote, confers upon American citizens, as against their government, “the right to be let alone.”
Harlan’s and Brandeis’ dissenting views in those cases and in a line of others eventually prevailed. Harlan’s dissent was reawakened nearly 60 years later when the Supreme Court struck down the principle of “separate but equal” in the field of public education. Brandeis’ championing of “the right to be let alone” laid the groundwork for the court’s recognition nearly 40 years later of a constitutional right to privacy.
Benjamin Cardozo, another former Supreme Court justice, once called the dissenter in a case “the gladiator making a last stand against the lions.” Harlan and Brandeis were indeed gladiators–justices who demonstrated how sustained and articulate dissent can help shape the views of future lawmakers and justices.
In Illinois, Moses Harrison II, a justice on the Illinois Supreme Court, has begun taking his own stand against the lions. In November, he wrote a dissent in which he called the death penalty “profoundly unjust” and argued that it should be held unconstitutional. Harrison, and Harrison alone, has continued to express that view in subsequent death-penalty cases before the court.
His stand seems truly quixotic. In Illinois, most residents support the death penalty. The governor supports the death penalty. The legislature supports the death penalty. Harrison’s fellow justices, while expressing no opinion on whether they favor the death penalty itself, have at least declared it constitutional.
Still, Harrison is hardly the first justice to take this particular stand. Between 1976 and 1991, Thurgood Marshall and William Brennan dissented more than 2,500 times in death-penalty cases that came before the U.S. Supreme Court. Former Illinois Supreme Court Justice Seymour Simon likewise issued a string of dissents condemning capital punishment.
Shortly before his retirement in 1994, Harry Blackmun, the late U.S. Supreme Court justice, issued a dissent in which he declared that, after more than 20 years of voting to uphold capital punishment’s constitutionality, he would do so no more. “From this day forward, I no longer shall tinker with the machinery of death,” Blackmun wrote.
Blackmun’s protest was clear, eloquent and concise–attributes absent from his most famous opinion, Roe vs. Wade, in which he wrote for the court and not just for himself.
It is twist that the first formal opinion issued by a U.S. Supreme Court justice was, in effect, a dissent. At the time, the justices delivered their opinions separately and in order of inverse seniority. So in 1792, Justice Thomas Johnson, the court’s most junior member, issued its first opinion–disagreeing with the conclusion reached by six of his colleagues.
William Johnson, who is sometimes referred to as America’s First Dissenter, was appointed to the court in 1804. A Democratic-Republican surrounded by Federalists, Johnson authored 34 dissents in 30 years–not much by today’s standards, but an awful lot for an era in which the court disposed of relatively few cases annually.
A line of great dissenters–including Harlan, Brandeis, Oliver Wendell Holmes and William O. Douglas–connects Johnson to the current Supreme Court, which includes some wonderful dissenters of its own. Those who know him say Antonin Scalia is a prince of a fellow, but Scalia can write pointed dissents that rip his colleagues and drip with sarcasm.
In 1988, the Supreme Court upheld the authority of independent counsels to investigate top government officials. Scalia alone dissented. “By its shortsighted action today,” he said, “I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.”
Certainly, the Supreme Court’s history turns up some rather undistinguished dissenters as well. Peter Daniel, a justice from 1841 to 1860, dissented in 111 cases, but his views have not exactly proved to be words of wisdom ahead of their time. Consider the following Daniel dissent and what his position would have meant for the future of the country’s interstate highway system:
“I believe that the authority vested in Congress by the Constitution to establish roads, confers no right to open new roads, but implies nothing beyond a discretion in the government in the regulations it may make for the post-office department for the selection among various routes.”
As for the quotations from Harlan and Brandeis that are carved into the Tribune’s hallways, they consist of excerpts that provide neither the name of the case nor the nature of the underlying dispute. The quotations even fail to note that Harlan and Brandeis were writing in dissent–that their words reflected a minority position and not the view of the court.
But behind the ink in stone are stories of flesh and blood that reflect just how different the freedoms of speech and press have been treated at the century’s start and end.
Harlan’s dissent was written in 1907. He protested because the court refused to grant any relief to Thomas Patterson, a man who had been held in contempt and fined for having the audacity to publish articles and a cartoon that criticized and embarrassed the Supreme Court of Colorado.
In Brandeis’ dissent, written in 1920, he protested the court’s decision to uphold a far more severe punishment imposed on three men who published German-language newspapers in Philadelphia. They were convicted of violating the Espionage Act by taking news dispatches from other newspapers and printing them with omissions and additions that allegedly had the effect of hindering America’s recruitment efforts and providing aid to its enemies.
In one article, the change consisted entirely of changing one word in the 12th line, turning brotreihen (bread lines) into brotriots (bread riots). And by printing such lines as, “It is worthy of note how much the Yankees can yell their throats out without spraining their mouths,” the Supreme Court found that the articles could have had the effect on readers of chilling “the ardency of patriotism” and making readers “despair of success.”
Werner, the editor, was sentenced to 5 years. Darkow, the news editor, also got 5 years. Lemke, the business manager, was sentenced to 2 years.
Brandeis found this patently unfair. “The constitutional right of free speech has been declared to be the same in peace and in war,” he wrote.
Two weeks ago, I walked down the Tribune Tower hallway past Brandeis’ dissent in that case and went out onto Michigan Avenue, where protesters, many of them Serbians, were loudly screaming in opposition to the NATO attacks in Yugoslavia. “Yankee Go Home,” they yelled, as police stood nearby without a thought of arresting anyone.
Brandeis lost the day, but he won the tomorrows.
