If the dissenting Justices are simply the losing side, why do they even bother writing an opinion?
It’s not all “argle-bargle” and “jiggery-pokery”—dissenting Justices actually have pretty lofty goals. Sometimes they hope to draw other Justices to their side, thereby turning their dissenting opinion into the majority. Other times, they call on the legislature to make change—as Justice Ruth Bader Ginsburg notoriously did in the Lily Ledbetter case. Dissents also allow Justices to offer a roadmap for future courts to reverse the decision at hand. True, some judges dissent simply for catharsis. As Judge Don Willett of the Fifth Circuit Court of Appeals said, he sometimes writes dissents “so he can sleep soundly, with a clear conscience.” But whatever the reason, it’s apparent that dissenting is not just a formality. And in this day and age, when civil disagreements are few and far between, dissents are arguably more important than ever.
One way in which dissents have been uniquely important in American history is that they have, on some occasions, over time, become the prevailing view. That is, sometimes the Court has gotten it wrong—in fact, egregiously wrong—and the dissents in those cases call out that injustice and pave the way for future decisions. Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson, which declared that separate railcars for Black and white passengers were not equal, did just that. His proclamation that the Constitution is “color-blind and neither knows nor tolerates classes among citizens” continues to inspire today. It also anticipated the Court’s landmark decision in Brown v. Board of Education.
Dissents are also important because they may draw Justices to the other side. We now know (thanks to Justice Harry Blackmun’s papers) that a Justice Clarence Thomas dissent in a case that started out 8-1 was so powerful, it drew Chief Justice William Rehnquist and Justices Antonin Scalia and Anthony Kennedy to his side, causing the case to end up 5-4 (with Thomas just one vote shy of the majority). According to Jan Crawford, “Justice Thomas’s dissents persuaded Justice Scalia to change his mind several times that [same] year…” And there are many other stories of Justices changing their vote after the initial conference (although their reasons are not always clear).
Justices sometimes dissent simply to present a side of the story that the majority ignored. This can have tremendous historical impact, as seen from a case in which a Justice actually failed to write a dissent. In the case of Bradwell v. Illinois, eight Supreme Court Justices ruled that the Fourteenth Amendment did not protect a women’s right to practice law. Chief Justice Salmon P. Chase was the only Justice who voted in favor of Mrs. Bradwell, but because he was very sick (and ended up dying shortly thereafter), he was unable to compose a written dissent. Myra Bradwell had been one of the most important women of the time: a suffragette, entrepreneur, and activist who worked to further equality of women before the law. But she’s largely forgotten today. If referenced at all, it’s usually in passing and in conjunction with the paternalistic and condescending opinions of the Justices who voted to deny her the right to work as a lawyer. Had Chase been able to write an inspiring dissent defending Mrs. Bradwell and her legacy, she just might be better known. Dissents have the power to enshrine stories into the proverbial book of history.
But there’s another, deceptively simple reason that dissents are important: dissents record the fact that there was another way to look at the issue—and that’s more important now than ever. In this hotly divided time, there is a creeping tendency to tell people to “get into line.” Rather than engaging in genuine back-and-forth, some would rather shut out opposing viewpoints and label them as “dangerous” (and then straw-man them, dox them, and purge them). And even when some do dissent, they have accompanied their protest with violence.
Both instincts are wrong. Dissent itself is patriotic—and the Supreme Court dissent is often one of the most civil ways of doing it. Sure, Justice Scalia was known for his “fiery” dissents—he once went so far as to say he would hide his head in a bag if he had joined the majority opinion, which he considered particularly poorly reasoned. But Scalia also said that the Justices do not take disagreement personally. He was famously close friends with Ginsburg, even though they were often on opposite sides of a decision. And as the Justice’s son, Christopher Scalia, remarked, Justices Scalia and Ginsburg never let a disagreement “get in the way” of their friendship. The interaction between Justices in majority and dissenting opinions demonstrates it’s possible to engage in impassioned, yet civil debate.
In short, dissents are not some sort of mere judicial formality; they are vital to our legal system. It’s time to read them, to celebrate them, to engage with them, and to take them seriously. And in the process we can help normalize good-faith and well-reasoned disagreement.