No, Biden’s Supreme Court justice will not be powerless

Ever since Justice Stephen Breyer announced his retirement from the Supreme Court, some analysts have been saying that replacing Breyer won’t make much difference, since it won’t change the Supreme Court’s conservative 6-3 majority.   

Don’t believe it.   

The reality is that justices in the minority have many ways of exerting influence and shifting the public discourse. How quickly and how effectively they can do that depends in part on who those justices are and how they use their opportunities to speak from the nation’s highest court.     

The late Justice Ruth Bader Ginsburg was known for powerful dissents that had a real impact on public opinion and, critically, on Congress.   

Ginsburg’s dissent in Shelby County v. Holder is famous. The court’s conservative majority had undermined the critical preclearance provision of the Voting Rights Act, claiming that so much progress had been made toward racial equity in voting rights that it was no longer needed.    

But Ginsburg wasn’t having it. She wrote in her dissent, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”  Her memorable metaphor continues to galvanize public support for voting rights today.   

Another Ginsburg dissent played a huge role in getting Congress to pass the Lilly Ledbetter Fair Pay Act. A 5-4 Supreme Court majority had ruled that Lilly Ledbetter couldn’t sue for 20 years of paycheck discrimination because she didn’t sue within 180 days of the first instance of pay discrimination — discrimination she had no way of knowing about.    

But Ginsburg’s dissent explained “the realities of the workplace” in a way that was clear to everyone. When Congress debated legislation to crack down on pay discrimination, lawmakers repeatedly cited Ginsburg’s dissent. The Lilly Ledbetter Fair Pay Act was the first bill signed by President Obama.     

Sometimes a minority justice’s decision to join a majority opinion prevents a worse outcome, at least temporarily. In a case last year, three moderate justices — Breyer, Sotomayor, and Kagan — joined conservatives Roberts, Kavanaugh and Barrett in a ruling involving same-sex couples adopting children.    

The ruling said that the city of Philadelphia was wrong to end its contract with a Catholic adoption agency that refused to accept same-sex couples. But the ruling was written so specifically to the case that it couldn’t be used to undermine the government’s general ability to prohibit anti-LGBTQ+ discrimination — which could have happened.   

A justice’s influence on their colleagues in the majority can be felt in other ways, too. Former Justice Sandra Day O’Connor was open about Justice Thurgood Marshall’s influence. She wrote, “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”       

There are examples through history of Supreme Court dissents that became majority opinions years or decades later, sometimes word-for-word and sometimes as inspiration.    

A famous example is the reversal of the court’s ruling in Plessy v. Ferguson. Back in 1896, the Supreme Court ruled to uphold state-sanctioned racial segregation, as long as facilities were “separate but equal.” Justice John M. Harlan strongly dissented from this egregious ruling, writing that “there is in this country no superior, dominant, ruling class of citizens.” Harlan wrote that the court’s ruling violated the 14th Amendment.   

Nearly 60 years later in Brown v. Board of Education, the Supreme Court adopted Harlan’s view that segregation violated the 14th Amendment, specifically in the context of public education. It ruled unanimously in Brown v. Board of Education that “separate but equal” facilities had no place in schools. That groundbreaking decision paved the way for transformative changes in America, as civil rights advocates fought for the desegregation of housing, transportation, higher education and more.   

So when someone suggests President Biden’s nominee to the Supreme Court can’t have much influence, we say: history says otherwise.  She can — and we bet she will.     

Paul Gordon is senior legislative counsel for People For the American Way. Gordon focuses particularly on matters relating to the federal courts, including the Supreme Court. Gordon releases an annual SCOTUS preview report, which addresses key SCOTUS cases on the docket each term. 

Editor’s note: This piece has been updated to correct former Justice Sandra Day O’Connor’s title.