December 4- The Anniversary of One of the Most Influential Supreme Court Dissents Ever

On this date in 1950, the Supreme Court decided Fox v. Snow, 6 N.J. 12 (1950). The case dealt with an estate issue. One party urged the Court to “explicitly and expressly overrule the long established law of this state” on the issue. By a 6-1 vote, the Court declined to do so. Such an action, the Court said, “would be fraught with great danger in this type of case where titles to property, held by bequests and devises, are involved. A change of the established law by judicial decision is retrospective. It makes the law at the time of prior decisions as it is declared in the last decision, as to all transactions that can be reached by it. On the other hand a change in the settled law by statute is prospective only.”

The majority opinion was per curiam, and consumed only six brief paragraphs. Chief Justice Vanderbilt, in a lengthy dissent, mounted an intense attack on the majority’s unwillingness to overrule precedent. He observed that had the majority’s view “been consistently applied in the past, would have prevented any change whatever in property law by judicial decisions. There would have been, E.g., no rule against perpetuities, no restraints on the alienation of property, no right to redeem mortgaged premises, no foreclosure of the equity of redemption, and so on endlessly. Every change in the law by judicial decision necessarily creates rights in one party to the litigation and imposes corresponding duties on the other party. This is the process by which the law grows and adjusts itself to the changing needs of the times.”

The Chief Justice invoked “one of the most ancient maxims known to our law,” one hat has since appeared regularly in New Jersey judicial opinions “Cessante ratione legis, cessat et ipsa lex (the reason for a law ceasing, the law itself ceases).” Quoting Justice Holmes, Chief Justice Vanderbilt went on to say that “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past, and [t]o rest upon a formula is a slumber that, prolonged, means death.”

The Chief Justice recognized the importance of stare decisis, but rejected applying it too rigidly. “The doctrine of Stare decisis neither renders the courts impotent to correct their past errors nor requires them to adhere blindly to rules that have lost their reason for being. The common law would be sapped of its life blood if Stare decisis were to become a god instead of a guide. The doctrine when properly applied operates only to control change, not to prevent it. ”

Chief Justice Vanderbilt found plenty of additional ammunition in the writings of others, such as Justice Cardozo and Dean Pound. Cardozo (before taking the bench) colorfully wrote that “[f]ew rules in our time are so well established that they may not be called upon any day to justify their existence as means adapted to an end. If they do not function they are diseased. If they are diseased, they must not propagate their kind. Sometimes they are cut out and extirpated altogether. Sometimes they are left with the shadow of continued life, but sterilized, truncated, impotent for harm.” Pound, tersely, said “Law must be stable, and yet it cannot stand still.”

Finally, the Chief Justice had recourse to Hurtado v. California, 110 U.S. 516, 529 (1883). There, the Supreme Court of the United States said that sticking with a rule because it had been the rule “would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and the Persians.”

Chief Justice Vanderbilt ended his dissent by stating “We should not permit the dead hand of the past to weigh so heavily upon the law that it perpetuates rules of law without reason. Unless rules of law are created, revised, or rejected as conditions change and as past errors become apparent, the common law will soon become antiquated and ineffective in an age of rapid economic and social change. It will be on its way to the grave.”

During the 1950’s, our Supreme Court cited Fox a few times for the majority’s statement that judicial decisions apply retroactively. But thereafter, courts almost never cited the majority opinion. Instead, several dozen opinions, including a significant number by the Supreme Court, have cited Chief Justice Vanderbilt’s dissent.

By the 1970’s, things had turned around completely. After quoting that dissent at length, the Court went so far as to say “unpersuasive it was to the Fox court majority in 1950, this philosophy has clearly guided this Court since, as exemplified in many of its decisions. We have agreed with the Vanderbilt thesis that the process of justice is not bound, as though by some strange sort of Mendelian law, to accept the hereditary transfer of now visible defects in justice, from generation to generation; that no such inevitability is required by the principle of Stare decisis, and that the Court, as well as the Legislature, has authority to intervene against operation of any such fallacy.”

It is a rare case whose dissent is more often cited, and far more influential, than the majority opinion. Fox v. Snow is one of those cases, and a “go to” for those seeking to change the law from what it has been.