Mark Tushnet is the William Nelson Cromwell Professor of Law emeritus, Harvard Law School, and the co-host of the podcast Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America. In this essay, he offers a personal reflection on the place of dissenting opinions in American constitutional law, drawing on his studies of the Court and its role in our constitutional system.
In a Q&A after a recent speech, Justice Ketanji Brown Jackson described Supreme Court dissenting opinions as “one of the most extraordinary aspects of the American legal tradition.” That view is so widely shared that Beacon Press asked me to edit a volume consisting of dissenting opinions, and Penguin Random House published Melvin Urofsky’s extensive analysis of dissents in the Supreme Court. Two biographies of Justice John Marshall Harlan have “great dissenter” in their titles, and Justice Oliver Wendell Holmes Jr. also is known as a great dissenter.
Jackson invoked a common view of dissents as an appeal to the future — an effort both to shape the future by making an alternative available for use when times change and to remind people in later times that not everyone thought that the Court had reached a just and wise result. That’s true enough, and yet we can see more deeply into our constitutional arrangements if we question praise for dissents as such — as opinions to be valued because they are dissents — and not because they are right where the Court’s majority was wrong.
Let’s clear away some underbrush first. Many dissents express disagreements with the majority’s interpretation of statutes. Sometimes the “appeal to history” argument works for these dissents, the most notable recent example being Justice Ruth Bader Ginsburg’s 2007 dissent when the Court rejected Lily Ledbetter’s claim that she had been discriminated against because of her gender. Ginsburg pointed out that Congress could correct the majority’s mistake, and it did so a few years later.
Often, though, dissents in statutory cases could be replaced with a simple, “I dissent,” or, if you’re bothered by the lack of explanation, “I dissent largely for the reasons well expressed by Judge A in the court below” or the like. Or, as was often true in the past, by nothing more than a note to the majority opinion’s author to the effect of, “I disagree but don’t think it worth spelling out why so I’ll join your opinion.” (Even notorious curmudgeons understood and sometimes adhered to this “norm of acquiescence.”)
Why write dissents in cases such as these where it’s not really necessary? Partly, I suspect, because of the sunk cost fallacy. Justices say to themselves, “Well, I worked out the argument in an unsuccessful effort to bring four colleagues over to my side. Though I failed, I might as well publish the darned thing.” I’d guess it sometimes also happens because the justice’s law clerks worked particularly hard on the opinion and the justice, as a good manager, wants to show appreciation for their work. At other times the dissent is something like a vanity project. A justice has a doctrinal hobbyhorse that’s going nowhere in the short run — and maybe not even in the long run — but the justice cares a lot about it, so publish away! Some dissents, then, don’t fit the “appeal to history” model well.
And then there are dissents that (for now at least) seem to be on the wrong side of history. Nobody celebrates Justice James McReynolds’s 1937 dissent in NLRB v. Jones & Laughlin Steel Corp. And, to come closer to home, I’m sure that liberals don’t think that Justice Antonin Scalia’s dyspeptic dissent in the marriage equality case Obergefell v. Hodges, with its famous Scalia zinger about hiding his head in a bag, was an admirable appeal to the future. And, with the widespread social acceptance of marriage equality even by many conservatives, I’m not sure how many conservatives think that Scalia and, perhaps even more, Chief Justice John Roberts, with his “more in sorrow than in anger” dissent, are making useful appeals to the future.
Looking at the universe of dissents and not just the dissents we — whoever we are in a particular case — happen to like because they are even now on the right side of history, the praise probably ought to be tempered.
Jackson praised dissents because they were “the embodiment of one of our core values, which is freedom of expression and tolerance of minority views.” She said that through the practice of dissent, “the Court models, in a way, the kind of society we should want,” where “those who disagree [can] voice their disagreement in sometimes very strident ways.”
I don’t want to put too much weight on the precise words she used in an informal Q&A, but there’s another way of looking at a culture of free expression in a world where people disagree about many things. It’s almost banal to observe that, while of course we should have the right to say almost anything we want, with as strident a tone as desired, it’s not always right to do. The past year or so of experiences with expression on cable news arguments and campaign rhetoric provide the most recent illustration of that. A vigorous and stable culture of free expression would include a healthy dollop of discretion about when and particularly how to disagree. A Court that modeled that might contribute more to sustaining a culture of free expression than one in which justices dissented as often as they do now. An occasional “Justice Jackson [or Justice Gorsuch] dissents [full stop]” might be a good way to start.
But there’s a deeper issue about praising dissents in such a general way, one that brings into the light a common feature in discussing law in general and constitutional law in particular. Jackson’s comments make clear that in praising dissents, we’re praising an institution independent of the content of any particular dissent: Scalia in Obergefell and Jackson in Students for Fair Admissions, where she vigorously defended affirmative action, are engaging in the same practice — dissent.
