Appealing to the Brooding Spirit of the Law: Good and Evil in Landmark Judicial Dissents: Good and Evil in Landmark Judicial Dissents

An examination of Harlan's Plessy v. Ferguson (1896), Holmes's Lochner v. New York (1905), Brandeis's Olmstead v. United States (1928), Murphy's Korematsu v. United States (1944), and Blackmun's Bowers v. Hardwick (1986) dissents demonstrates the ways in which good and evil are used in dissenting opinions. The Constitution is constructed as good and the authority by which the citizens are protected. The dissents frame constitutional interpretation, the government, and statutory law as evil. The use of these arguments in judicial dissents shifts the legal conflict from a difference of acceptable legal interpretation or public policy into a metaphysical battle between good and evil.