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Sunday, September 08, 2013

Visualizing SCOTUS Doctrine II - Dissents and Competing Traditions

In my last post, I introduced the SCOTUS Mapping Project and explained the basics of its conceptual scheme for visualizing Court doctrine. Today, I want to pick up where I left off and talk about how dissents fit into the picture. My argument is that charting out lines of dissent helps reveal the genealogies of competing doctrinal traditions. Although these competing traditions have evolved over the generations, doctrinal maps illustrate how debates of old continue to inform current conflicts on the Court.

Let's dive right in then and consider some concrete examples.  

To start, recall from last time Maryland v. King, the arrestee DNA case. In my last post, I presented a map that puported to represent the search-incident-to-arrest doctrinal tradition standing behind the Justice Kennedy's analysis that arrestee DNA collection does not violate the 4th Amendment. (For ease of reference, click here to open that map in a separate browser window). Now let's bring Justice Scalia's dissent from King into view. Map 4 below does just that. Analysis comes after the jump.

Map 4 (open in separate window)

Scalia's dissent in King appears in red all the way on the right side of the map. Note that its position on the Y axis shows that his opinion received four votes on the Court. As support for his argument that the 4th Amendment grants only limited powers to search incident to arrest, Scalia cited 2009's Arizona v. Gant. As the map indicates, Gant was another 5-4 split where Justice Stevens wrote the majority opinion and Justice Alito authored the dissent. 

Looking at the big picture, one can immediately see that the Court has long divided over search-incident-to-arrest doctrine. We notice that criminal defendants have usually lost, as represented by blue opinions appearing above the dashed line -- Rabinowitz, Robinson, Belton, Florence, and King. Yet defendants have also secured key victories as shown by the red majority opinions in Chimel and Gant.  Significantly, Chimel and Gant also represent moments where the Court's search-and-seizure doctrine dramatically changed course. Chimel overruled Rabinowitz and Justice Stewart's majority opinion relied heavily upon Justice Frankfurter's Rabinowtiz dissent to support its doctrinal analysis. Gant likewise overruled Belton and Justice Stevens' majority opinion invoked Justice Brennan's prior dissent for support.

Now, the aim of this blog entry is not to analyze the twists and turns of any particular doctrine. The aim is instead to suggest the significance of the fact that the Court's search-incident-to-arrest doctrine, like so many other key areas, is hotly contested. Debates have raged for years. And though the facts of cases change, the analytical and tensions in the doctrine remain the same. For generations, Justices have differed on the best reading of the relevant texts and they have inevitably looked to prior opinions -- majorities, dissents, and concurrences too -- to justify their chosen approaches.   

Doctrinal maps provide a handy way to visualize the genealogies of these epic debates. They can chart the paths of dialectics between competing traditions of doctrinal interpretation. Dissents can often shed an especially revealing light on such constitutional dialectics. For powerful dissents have often served as inspiration for exiled schools of constitutional thought.  Over time, these exiled schools sometimes return to the majority just as prior majorities sometimes find their tradition's analysis relegated to dissent.

Let's consider two furthet examples to flesh this idea out.

Cps05-SDP Eco Liberty-dialectic
Map 5 (open in separate window)

Map 5 above portrays an oft-discussed slice of constitutional history -- the rise and fall of "Lochnerism" a.k.a. the Court's due process economic liberty jurisprudence. This time, the duelling lines of opinions are represented in purple and green. Scholars continue to tussle over this history  and I don't mean to revisit that controversy now (thouh I have done so here). Rather, I point to two dissents on the map -- Justice Bradley's in Slaughterhouse and Justice Holmes' in Lochner -- and suggest that they represent critical articulations of the competing schools' doctrinal philosophies. And both dissents eventually captured majority support.

For our final example, let us turn to history once more. This year is the 50th anniversary of the Court's handing down its landmark decision Brady v. Maryland -- which recognized that criminal defendants have a due process right to obtain exculpatory evidence in the hands of the prosecution.   Thought the right to"Brady material" is now deeply woven into our constitutional fabric, it was not always so. How did due process jurisprudence come to recognize the right.? Map 6 below tells the story.

Cps06-Brady Origins

Map 6 (open in separate window)

While Brady's relationship to Mooney, Pyle, and Napue is well known among criminal procedure aficionados, its connection to Justice Holmes' dissent in Frank is not as widely celebrated. I have elsewhere justified putting Holmes' dissent into Brady's ancestral family tree (here and here). As before, the point now is not engage in substantive doctrinal discussion but rather to show  (a) how doctrinal maps can provide a convenient way to structure such a discussion; and (b) how attention to dissents potentially helps reveal the competing traditions that often animate doctrinal dialectics.

With these three examples on the table, Readers should have a fair idea of a typical doctrinal map. At least, the maps above represent my own typical uses of the Mapper software. I have no doubt that others could create different and better visualizations using the same tool. Indeed, I hope to recruit interested Readers into making maps and I have secured limited grant funding to incentivize this. (As I'll explain in a later post, grants will be in the range of approximately $250-$500 per map).

Over the course of the month,  I will generally discuss the map-making process and how the software works. I'll also continue to explore the theoretical dimensions of the project and try to respond to Readers' questions, concerns, and challenges.  So thanks and please stay tuned!  

Posted by Colin Starger on September 8, 2013 at 10:47 AM | Permalink


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Reading this series of entries with great interest.

Posted by: E | Sep 8, 2013 11:57:19 AM

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