Block on Trump's Asylum Ban Upheld by Supreme Court
When it comes to the Supreme Court, we live in the age of dissent. Dissents can give activists a guideline to changing the law and they can rally the faithful to a cause that's just lost -- for now. Scalia's brash style, for example, shines brightest in losing dissents.
But outside of blog headlines and Twitter quotations, a Supreme Court dissent can have real power. A new book by legal historian Melvin Urofsky, Dissent and the Supreme Court, reminds us of just that. Dissents, Urosky argues, have a powerful role in shaping the nation's constitutional dialogue and can end up embraced by the Court itself years later. Here are three times history has proven his thesis correct.
226 Years of Changing Our Minds
The Supreme Court isn't a consistent beast, Urosky makes clear. Over its 226-year long history, the Court has made massive pivots in policy and precedent, shifting over the years on everything from individual rights, to economic policy, to slavery. At the center of at least some of those shifts are dissents from the Court itself. The great liberal wins under the Warren Court were presaged by dissents from a more conservative age. Those opinions are themselves under threat by a new era of more rightwing Justices who have embraced the logic of Warren Court dissenters. Given time, a dissent can lay the groundwork for a new majority opinion.
Here is one of the clearest examples of a dissent becoming the governing logic of later cases. Brown v. Board explicitly renounced the "separate but equal" logic adopted by the Supreme Court in Plessy. Justice Harlan's lone dissent in Plessy helped lead the way, declaring that "in the view of the Constitution, in the eye of the law, there is in this country no superior class of citizens... The Constitution is color-blind, and neither knows nor tolerates classes among citizens."
In Betts, the Supreme Court denied appointed lawyers to indigent defendants facing prosecution by the state. A fair trial, here one for robbery, didn't require representation in all cases, the Court ruled. Justice Black issued a prophetic dissent: "A practice cannot be reconciled with 'common and fundamental ideas of fairness and right,' which subjects innocent men to increased dangers of conviction merely because of their poverty."
Twenty-one years later, Justice Black authored the unanimous decision in Gideon v. Wainwright overruling Betts. Indigent defendants now had a much better shot at a fair trial.
Bowers upheld discriminatory state statutes that criminalized sexually active gay and lesbian relationships. The Court in Bowers characterized the desire to not be arrested for engaging in private sexual relations as a call for it to recognize "a fundamental right upon homosexuals to engage in sodomy." Justice Blackmun, dissenting, characterized the issue as a right to privacy and condemned the majority for its "almost obsessive focus on homosexual activity." Justice Steven's dissent rejected the idea that moral condemnation would be sufficient to uphold a law limiting individual liberty.
The dissents won, eventually. Less than 20 years later, the Court overturned Bowers in Lawrence v. Texas. There, Justice Kennedy declared for the Court that Steve's view should have been controlling. "Bowers was not correct when it was decided, and it is not correct today," he wrote.
What dissents will end up as the basis of future Court decisions? It's hard to say. Plenty of campaign finance-minded Court watchers would love to see Justice Steven's dissent in Citizens United become the Court's new norm. Justice Breyer gave death penalty opponents a dissent to rally around this June, calling in to question the constitutionality of capital punishment.
On the other side of the aisle, plenty of conservatives would love to see Justice Roberts's Obamacare opinions officially overruled as "pure applesauce." Opponents of Roe v. Wade have often harkened to Justice O'Connor's dissent in Akron Center for Reproductive Health, declaring that Roe's framework was "clearly on a collision course with itself."
If Urofsky's scholarship is to be any guide, the more successfully those dissents begin to shape the constitutional conversation, the greater chance they have of being adopted in the future.