According to Edward Lazarus the Supreme Court has, in modern times, allowed itself to become bitterly divided into faction. Such factionalism could also be excused, had it not extended to even the clerks of the judges.
The judges of the court commonly hire law school graduates to clerk for them. The clerks are permitted too much power in terms of writing opinions. These clerks are also known to take after their respective judges. Lazarus feels that these factions permit cracks to appear in the unanimity of the court. Lazarus also states that these cracks are in some cases desirable. The instance of Justice Harlan’s dissent in Plessy vs. Ferguson is a case in point.
The dissent in this case allowed a later court to dissent in Brown vs. Board of Education. The dissents are often passionate and centered on one point. The spirit is rarely collegial.
In Epstein and Knight’s Choices, a strategic account of the decision making process in the Supreme Court is offered. Epstein and Knight argue that using an attitudinal model to explain the rationale of decision making is wrong and provides only an incomplete picture. The authors feel that justices make decisions strategically.
In this framework, laws set by the Supreme Court become the products of short term strategic thinking. Dissents are a bargaining tool as described by Epstein and Knight.Thus we see that Lazarus and Epstein and Knight agree on the importance of dissents. While Lazarus feels that dissents are a way for the court to correct its mistakes, Epstein and Knight feel that dissents are a strategy move by justices. These dissents allow justices to bargain on whether to hear a case or not