May 31, 2012

Posted in Uncategorized

The Rule Against Perpetuities for Perpetual Dissents

Share Button


In light of Justice Steven’s insistence on perpetually dissenting from Citizens United–a case decided two years ago–as a soon-to-be property prof, I propose a rule against perpetuities for perpetual dissents:

A Justice (whether active or retired) can only complain about an opinion in which they dissented for the term-in-being (that is, the term when the dissent was issued) plus four years or until the next Justice is confirmed (whichever happens first).

This may work for a few reasons.

Generally, an opinion that warrants a perpetual dissent resulted from a sharp 5-4 split. Sure, Brennan and Marshall dissented from *every* death penalty case, but no one could conceivably take those dissents seriously after a while. Stevens is very proud that his dissent was based on a “rule of law“–not some public policy (exactly what characterized Marshall/Brennan dissents).

So, I think it is fair game for a Justice to continue to complain about an opinion until one of two things happens.

First, a new Justice is appointed. That may (or may not) be enough to swing the 5-4 split a different direction.

Or, four years elapses. This would give, presumably, the American people a chance to elect a new President, who can (ultimately) appoint a new Justice to change the direction of the Court.

I recognize this rule isn’t perfect, though frankly it makes a hell of a lot more sense than the actual rule against perpetuities (at this point I plan on teaching it, briefly, but not testing it).

I’ll come back to this later.

Share Button
Print Friendly