Kevin M. Stack

The Practice of Dissent in the Supreme Court

The United States Supreme Courts connection to the ideal of the rule of law is often taken to be the principal basis of the Courts political legitimacy.1 In the Supreme Courts practices, however, the ideal of the rule of law and the Courts political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Courts legitimacy part company with respect to the Courts practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent?the tradition of Justices publishing their differences with the judgment or the reasoning of their peers2?cannot be justified on the basis of an appeal to the ideal of the rule of law, but that other bases ofthe Courts political legitimacy provide a justification for this practice. The Note thus has two aspirations. First, it seeks to provide a justification for the practice of dissent in the Supreme Court. Second, in pursuit of that