Lacking power, Supreme Court’s liberals find voice in dissent

Outnumbered 6-3, the Supreme Court’s liberals are increasingly likely to find themselves on the losing side of landmark rulings, as happened repeatedly this term, most notably with the historic overruling of Roe v. Wade.

As a result, the dissenting opinion — a quintessentially American form of discourse — has taken on heightened symbolic significance. Although in no way binding, the dissents are serving as a platform for articulating the role of liberal judicial ideas in public life, and laying down a historical marker in an era of conservative-led legal upheaval.

And, as illustrated by recent headlines on the court battles over abortion access and gun rights, dissenting opinions can even anticipate how a majority opinion that settles one dispute may stir up at least as much social and legal conflict as it resolves.

“This was a monumental term, and the liberals were on the losing side of almost every major case,” said Erwin Chemerinsky, dean of the University of California Berkeley Law School. “Their dissents were passionate, angry and sad. But there was another more subtle characteristic: The dissenters were focusing on the real-world consequences that the majority ignored.”

In late June, the Supreme Court’s three liberals issued a blistering 66-page dissent that condemned the conservatives’ toppling of Roe v. Wade. The dissent in Dobbs v. Jackson Women’s Health Organization took particular issue with the majority’s claim that eliminating the constitutional right to abortion and allowing voters to decide the issue would take courts out of the equation.

“Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming interjurisdictional abortion wars,” 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’s warnings are now playing out as predicted. She pointed to newly filed lawsuits between state and federal governments over the right to an abortion in cases of medical emergencies, as well as discussions by far-right lawmakers in several states to make interstate travel for abortion illegal, proposals that would be certain to draw swift constitutional challenges if they became law.

“I do think that the dissent in Dobbs has teed up what are going to be the challenges ahead in a way that I think the majority doesn’t really wrestle with at all, other than to say, ‘Go vote,’” said Rebouché, who co-authored a law review article cited in the dissenting opinion.

Court watchers also credited the liberal dissenters with foreseeing the flood of legal challenges that have followed the court’s expansion of gun rights in June. In New York State Rifle and Pistol Association v. Bruen, another 6-3 ruling, 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 Justice Clarence Thomas’s landmark gun rights opinion was to strike down laws in New York and a half-dozen other states that made it relatively difficult to obtain handgun carry permits. More broadly, the decision called into question the legality of a wide range of other gun control measures, teeing up numerous challenges since being handed down.

“I think the dissent in Bruen rightly predicted the decision as leading to challenges to countless gun regulations,” said Chemerinsky.

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

Dissent is not only a time-honored tradition at the court, it is also baked into the DNA of American political culture, according to Melvin I. Urofsky, author of “Dissent and the Supreme Court.”

“Many of the early settlers were either religious or political dissenters, and the colonies soon filled with immigrants holding a wide diversity of views on almost everything,” Urofsky wrote in his 2015 book. “The American Revolution came about because of popular dissension from the policies of His Majesty’s Government, and once the colonies had achieved independence, they fell to squabbling among themselves.”

As for the court itself, perhaps the most famous utterance on the transformative power of dissent came from former Chief Justice Charles Evans Hughes, a nominee of President Herbert Hoover. According to Hughes, a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

Steven D. Schwinn, a law professor at the University of Illinois Chicago, said he expects the court’s liberals to continue to use dissent over hot-button issues to point out what they see as the flaws in conservative-majority opinions, and to inform the public about the “seismic changes” being wrought by court.

Although the court’s composition is unlikely to fundamentally change any time soon, Schwinn said, today’s dissenting opinions could one day inform a future court. In this way, present-day dissents could “serve as place-holders or draft opinions for the Court if and when progressives ever come to dominate,” he said.

Such a development would not be without precedent. Historians often illustrate the point by citing Justice John Marshall Harlan’s courageous dissent from the court’s notorious 7-1 ruling in Plessy v. Ferguson in 1896, which endorsed racial segregation under the principle of “separate but equal.”

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

Only time will tell which modern-day dissents will go on to frame future Supreme Court debates. For now, Schwinn said, the court’s liberals are likely to continue raising concerns about what the court’s dramatic conservative shift means mean for constitutional law and society.

“I see the dissents so far as forcefully explaining what the majority is doing,” he said, “its significance, its impact on constitutional law, its impact on society, and even its impact on the legitimacy of the Court itself.”