U.S. Supreme Court Justice Samuel Alito likely spoke for millions of Americans Wednesday when he decried the strategy, tactics and motives of Fred Phelps and his Westboro Baptist Church zealots, who picket military funerals to express their virulent anti-gay views.
But on the Court, Justice Alito spoke alone.
The other eight justices -- four of them conservatives, four of them progressives -- all sided with the Phelps family and against the family of Lance Cpl. Matthew Snyder, whose funeral the church picketed in early 2006. Chief Justice John Roberts, writing for the majority
, declared that the First Amendment encompasses the political, public and peaceable protests of the group. Accordingly, the chief justice voided a multi-million-dollar tort verdict the Snyders had won when they sued the Phelpses for picketing their son's funeral with signs like "Thank God for Dead Soldiers."
Justice Alito was the sole dissenter -- he called the Phelps' conduct "brutalizing" -- and thereby became the official voice of people everywhere who were unwilling or unable in this instance to fit the lofty goals of the First Amendment with the gutter tactics of the church. Unfettered by the responsibility of creating legal precedent (no one ever has
to defer to a dissenting opinion, remember), and emboldened by the strength of his feelings on the topic, Justice Alito wrote a passionate attack upon the majority's ruling and a stoic defense of what many people following this story might consider plain, old common sense.
Here is how Alito began his dissent:
"Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew's funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents' right to brutalize Mr. Snyder. I cannot agree."
You get the gist. Alito concluded his dissent with these strong words: "Respondents' outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered." And so a justice who approved of such broad free speech rights for corporations in the Citizens United campaign finance case
last January disapproved of the rights of Phelps and company to use the Snyder family, in some of its darkest moments, as a marketing tool.
No one who saw or heard
Alito at oral argument in the case in October, when he barely concealed his contempt for the Phelps family, ought to be surprised by what he subsequently wrote. If anything, the dissent was milder than many might have predicted when they came out of court after hearing argument in the case. For him, the Court drew a line in the wrong place between outrageous conduct and protected speech. For him, the Phelps family had gamed the law all the way through to the end -- and then emerged victorious at the highest court in the land.
There is a certainty dignity to being the lone dissenter in a high profile case. Sometimes these dissents just fade into memory, a statistic on the sheets Supreme Court officials pass out every summer telling the public which justice voted with whom and how often. Sometimes these dissents become law school fodder. Sometimes they are cited by hopeful attorneys in the hope of making a small point in a large case. And sometimes, given enough time, they become the law of the land.
For years in the 1970s, when he first came to the Supreme Court, Nixon-appointee Justice William Rehnquist was the lone conservative voice on the tail-end of the Warren Court. He wrote many sole dissents
. But over time, during the 1980s, the Court moved to the right, far to the right, and by the time that Rehnquist was promoted to chief justice, many of his dissenting views had become majority precedent. And if and when the Court drifts back to the left, the same thing will happen all over again.
The lone judicial dissent thus can be to legal rulings what jazz is to music -- an opportunity for the artist to go off on a sanctioned riff. The sole dissent can be angrier. Freer. It can even be poetic. Indeed, it was Justice Oliver Wendell Holmes, in dissent in the World War I-era Espionage Act case Abrams v. United States, who uttered among the most important and famous words in the history of the Court. They were words about speech and dissent. Holmes wrote
"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment."
Now, Justice Alito is no Justice Holmes. And Fred Phelps and his "church" are no worthy cause. But Alito's arguments and language resonated deeply with many people who looked at the majority's opinion, scratched their heads, and wondered why. His dissent, about the Phelps family's dissent from decent human behavior, is probably what Justice Holmes had in mind in the first place.