Powerless, Supreme Court liberals find voice in dissent


Outnumbered 6-3, Supreme Court Liberals are increasingly likely to find themselves on the losing side of landmark rulings, as has happened repeatedly this term, including with Roe’s landmark overturning. v. Wade.

As a result, dissent—a quintessentially American form of speech—took on increased symbolic significance. While by no means binding, the dissents serve as a platform to articulate the role of liberal judicial ideas in public life and establish a historical marker in an era of conservative-led legal upheaval.

And, as recent headlines about legal battles over abortion access and gun rights illustrate, dissenting opinions may even anticipate how a majority opinion settling a dispute can elicit at least as many social and legal conflicts than it resolves.

“It was a monumental tenure, and the liberals were on the losing side in almost every major case,” said Erwin Chemerinsky, dean of law school at the University of California, Berkeley. “Their dissents were passionate, angry and sad. But there was another, more subtle feature: the dissidents focused on the real consequences that the majority ignored.

In late June, the Supreme Court‘s three liberals released a searing 66-page dissent condemning the conservatives’ overthrow of Roe v. Wade. The dissent in Dobbs v. Jackson Women’s Health Organization particularly took issue with the majority’s assertion that eliminating the constitutional right to abortion and allowing voters to decide the issue would take the courts out of the equation.

“Far from alienating the court from the issue of abortion, the majority places the court at the center of the interjurisdictional abortion wars to come,” wrote liberal justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

According to Rachel Rebouché, dean of Temple University Beasley School of Law, some of the dissent warnings are now going as planned. She pointed to new lawsuits between state and federal governments regarding the right to abortion in medical emergencies, as well as talks by far-right lawmakers in several states to make interstate travel illegal for abortion, proposals that are sure to attract quick constitutional challenges if they become law.

“I think the dissent in Dobbs has addressed the challenges ahead in a way that I think the majority don’t struggle with at all, other than to say, ‘Go vote,'” Rebouché said. , co-author of a law review article cited in the dissenting opinion.

Court watchers also credit liberal dissidents with predicting the flood of legal challenges that followed the court’s expansion of gun rights in June. In New York State Rifle and Pistol Association v. Bruen, another 6-3 decision, the majority held that the Second Amendment protects an individual’s right to carry a handgun for self-defense outside the home.

The practical effect of Judge Clarence Thomas’ landmark opinion on gun rights was to strike down laws in New York and half a dozen other states that made it relatively difficult to obtain gun licenses. carrying handguns. More broadly, the ruling called into question the legality of a wide range of other gun control measures, raising numerous challenges since it was handed down.

“I think the dissent in Bruen correctly predicted that the decision would lead to challenges to countless gun regulations,” Chemerinsky said.

The court’s newly reconstituted liberal bloc in late June saw outgoing Justice Stephen Breyer replaced by Justice Ketanji Brown Jackson, the first black woman to serve on the Supreme Court. While Jackson’s addition won’t fundamentally change the ideological balance, she could be a galvanizing force for liberals, whose judicial voice will likely be shaped by dissent, especially when it comes to politically explosive issues.

Dissent is not only a centuries-old tradition in the court, it’s also ingrained in the DNA of American political culture, according to Melvin I. Urofsky, author of “Dissent and the Supreme Court.”

“Many of the early settlers were religious or political dissenters, and the colonies quickly filled with immigrants with a wide diversity of opinions on almost everything,” Urofsky wrote in his 2015 book. “The American Revolution was born out of popular dissension of the policy of Her Majesty’s Government, and once the colonies gained independence they bickered among themselves.”

As for the court itself, perhaps the most famous statement about the transformative power of dissent is that of former Chief Justice Charles Evans Hughes, a candidate for President Herbert Hoover. According to Hughes, a dissenting opinion is “an appeal to the sullen spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error in which the dissenting judge thinks the court has been betrayed”.

Steven D. Schwinn, a law professor at the University of Illinois at Chicago, said he expects liberals on the court to continue to use dissent on burning issues to underscore what they view as the flaws of the conservative majority views and to inform the public about the “seismic shifts” wrought by the court.

While the composition of the tribunal is unlikely to fundamentally change any time soon, Schwinn said, today’s dissenting opinions could one day inform a future tribunal. That way, current dissents could “serve as a placeholder or draft opinions for the court if and when progressives come to dominate,” he said.

Such a development would not be unprecedented. Historians often illustrate this point by citing the courageous dissent of Judge John Marshall Harlan from the court’s notorious 7-1 decision in Plessy v. Ferguson in 1896, which endorsed racial segregation under the principle of “separate but equal”.

Harlan’s single dissent, which described the Constitution as “colorblind” and tolerant of no “caste,” would lay the groundwork for Plessy’s later overturning by the Supreme Court with its 1954 unanimous decision in Brown v. Board of Education.

Only time will tell what modern dissents will frame future Supreme Court debates. For now, Schwinn said, court liberals will likely continue to worry about what the court’s dramatic conservative shift means for constitutional law and society.

“I see dissent insofar as it forcefully explains what the majority is doing,” he said, “its importance, its impact on constitutional law, its impact on society, and even its impact on the legitimacy of the Court itself”.

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