Dissents: What's the Deal-eo?
Have you ever heard a news reporter announce a Supreme Court ruling and say that one of the justices wrote a "blistering dissent"? Have you ever wondered what the hell that meant? And why dissents always seem to cause blisters? (Why not warts?)
Okay, I don't have a good answer for the blister thing, but I can tell you what dissents are and why we should care about them.
The Supreme Court has nine justices. Whenever they issue an opinion, at least five of them have to agree in order for the decision to become law. But that also means that up to four of them can disagree. When they disagree with the majority decision, they usually write about it, and the thing they write is called a dissent.
Dissenting opinions lack the drama of bare knuckle boxing, but they can still be compelling. Sometimes they can be the lone voice of reason. Justice John Marshall Harlan was the only dude who dissented in Plessy v. Fergusen. (Trust me, they were all dudes on the Supreme Court back then.) Plessy was the 1896 case that said that segregation in public spaces was fine so long as the accommodations for Black people were "separate but equal" to the accomodations given to Whites. (Which we all know they weren't.) In other words, Plessy was the decision that said it was legal to make Rosa Parks sit in the back of the bus. Fifty-eight years later, Harlan's dissent was vindicated in Brown v. Board of Education, the landmark case that held that segregated schools for Black students was unconstitutional.
So what happened during the 58 years between Plessy and Brown? Was Harlan's lone dissent enough to convince future justices on the Supreme Court that they had it all wrong in Plessy? No, of course not. The Civil Rights Movement took place between Plessy and Brown. The winds of political change were blowing. The Supreme Court is influenced by those winds of change. The results we got from the Supreme Court in Brown showed us that they, along with the rest of the nation, were moving in the direction of wanting full equality for our Black citizens.
But not all dissenters are champions of the oppressed. In Lawrence v. Texas, the decision that struck down Texas' sodomy law, Justice Scalia wrote a dissent. (Of course he did. Nobody understood the need to police gay sex quite like Antonin Scalia.) In his dissent, Scalia warned that if gay sex were made legal, then gay marriage would be next. Turns out he was right. The Court ignored his warning and made same sex marriage legal in all 50 states when it issued its decision in Obergefell v. Hodges. (All thanks to
the Court finally agreeing with me that the Fourteenth Amendment applies to gay marriage. But more on that later.)
So why should we care about dissents? If the majority opinion is the only one that counts as far as the law is concerned, then why do dissents matter? Well, two reasons. First, the fact that someone on the Supreme Court wrote the opinion is kind of a big deal. Even though they might have been in the minority for that particular opinion, we still respect the fact that they're on the Supreme Court, so we care about what they have to say. And other people will quote from dissenting opinions to support their arguments if they agree.
Also, (this is where I wax all poetic and reveal that I'm a true idealist, and not just a snarky bastard) dissents show that we have a healthy democracy. If the nine justices on the Supreme Court can't all agree to one solution to an issue, then that more truly reflects our nation's struggle with that issue. And as long as we continue to grapple sincerely, then maybe our national dialogue will continue until we reach a solution we can all live with. Or not. But talking is still better than throwing rocks.