May 31, 2012

Posted in Uncategorized

The Rule Against Perpetuities for Perpetual Dissents

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.

Print Friendly