A Quick Review of What Judicial Dissent Has Done

Over the first week of my research, I went over several literatures on the history of dissenting opinions of the Supreme Court, and had an overview regarding the driving forces of such practice and its potential impact. Although a number of court opinions were controversial at their times and some remained to be controversial until today, the history of this nation remembers dissenters like John Marshal Harlan and John Paul Stevens because their determination to speak as the minority has significantly affected the course of social progress.


For 58 years, Justice Harlan’s great dissent against racial segregation in Plessy v. Ferguson awaited its vindication, which was finally realized by the unanimous ruling of the court in Brown v. Board in 1954. Fifty years account for over one fifth of the length of the nation’s history, during which generations fought for their Fourteenth Amendment rights but did not live to see the glimmer of victory. History has taught us that rights never come without struggles, and that behaviors making perfect sense today might get citizens branded criminals if it was decades ago. Then the first question came up to me: what role does dissent play in all these struggles? This certainly is a broad question that could be answered from different aspects, but due to the lack of judicial power, dissent usually influences changes in an indirect way. As Mark Tushnet put it in his book I Dissent, “Before taking a completely sunny view of these prescient dissents, we should remember that a dissent’s vindication, if it comes, is the product of a complex social and political process.”


Since all opinions of the court need time to be justified, it is certainly easier to examine the dissents made in the Warren and Burger Court than to explore the effects of dissents made in the Roberts Court. But the age we are at today is not exempted from witnessing the battle that calls for civil rights for minority groups. Therefore, I decided that it is necessary for this project to be pertinent to recent struggles in the nation. And after I read about the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Right Commission, I decided to employ the lgbt rights cases as a lens through which I could observe the role and effects of dissent. One of the reasons is that the opinions in Masterpiece presented me with two questions: why gay couples are still not allowed to purchase certain goods after Obergefell, and what the future court should do when religious interests are in conflict with the right of same-sex marriage. I feel that these are the questions of real importance, and that from the debate within the court today, we may be able to find answers that assist future courts to better interpret the Constitution.


Therefore, having learned a lot about the history, the influence, and the pros and cons of dissent concluded by different authors, I moved on to the next stage: reading dissenting opinions, understanding common law, and making connections.