Liberal Supreme Court justices can still influence legal arguments -- with dissent

Mia Brett
10 February 2022
'The State’s gambit has worked': Justice Sotomayor decries the court's refusal to lift the Texas abortion ban

If you’re not a lawyer or a legal nerd like me, you probably don’t pay much attention to the dissenting opinions in Supreme Court cases. After all, only the majority opinion actually affects law.

Dissenting opinions not only serve to show that a legal decision is controversial, but can provide important legal arguments for later challenges or ultimately overturn the decision. They’re not legal precedent but they are legal arguments of importance from a recognized authority on constitutional law.

One of the most influential dissents in history was Justice John Marshall Harlan’s dissent in Plessy v. Ferguson in 1896. The majority in Plessy upheld the “separate but equal” doctrine permitting racial segregation to flourish.

In his dissent, Harlan argued that such a decision would support “race hatred” in state laws. He declared that our “constitution was colorblind” and should not privilege one class of people over another.

His many dissents arguing for a broader interpretation of the 14th Amendment and for incorporating the Bill of Rights to apply to the states set the foundation for contemporary constitutional interpretation and particularly influenced striking down segregation in Brown v. Board of Education and other civil rights jurisprudence.

In Olmstead v. US in 1928, Justice Louis Brandeis wrote an important dissent still being cited in jurisprudence.

Olmstead concerned evidence that was possibly illegally obtained through wiretaps by federal agents. In 1914, Weeks v. US set the precedent that illegally obtained evidence from a private residence violated the 4th Amendment and must be excluded from evidence presented at trial.

At this time, the Bill of Rights was not incorporated to apply to the states so such a ruling only applied to actions taken by the federal government (the exclusionary rule for evidence was applied to state courts in 1961 in Mapp v. Ohio).

In Olmstead, federal agents had wiretapped people to gain evidence that they were transporting and selling alcohol in violation of the National Prohibition Act. Roy Olmstead was convicted of conspiracy based on the wiretap evidence.

Writing for the majority, Chief Justice William Taft distinguished Olmstead from Weeks by arguing that since all the agents did was obtain evidence through “hearing,” there was no searching or seizing.

In Weeks, illegal evidence was obtained in the form of sealed envelopes. Brandeis dissented and argued that the “progress of science” can’t limit 4th Amendment protections as technology allows for more and more possibilities for invading privacy.

Olmstead was overturned by Katz v. US in 1967 and the dissent was cited in the majority opinion in 2018 for Carpenter v. US.

In 1986, the Supreme Court held in the majority opinion for Bowers v. Hardwick that Georgia’s anti-sodomy laws were constitutional because there was no constitutional right to engage in homosexual sex.

In the dissent, Justice Harry Blackmun argued that the justices were framing the issue incorrectly.

There was no need to consider historical prohibitions against certain types of sex or a specific constitutional right to engage in certain types of sex, he said. The constitutional issue was the right to privacy.

He argued the court was obsessed with discussing homosexual sex and so weren’t considering the implications of limiting privacy rights by allowing private consensual sex acts to be criminalized.

The majority distinguished Bowers from earlier cases on sexual privacy solely through homosexuality. While the Georgia law didn’t specify homosexuality, previous constitutional cases meant it could only be applied to homosexual sexual acts. This selective enforcement issue was the focus of Justice John Paul Stevens’ dissent.

Ultimately, Justice Blackmun’s dissent was shown to be the correct constitutional argument as Lawrence v. Texas struck down Bowers in 2003 on privacy grounds. Ironically, Justice Antonin Scalia’s dissent in Lawrence warned the decision would lead to legally protecting gay marriage.

Breyer was a steadfastly liberal justice. but he has few firebrand dissents to point to. Breyer wrote dissents objecting to rejecting integration plans for a school, argued the death penalty constituted “cruel and unusual punishment” and read portions of his dissent from the bench in a case in which the majority denied periodic bail hearings to asylum seekers.

However, when compared to Ginsburg’s record, or now the growing list of dissents by Sonia Sotomayor, one can’t claim Breyer’s influence is shown in his dissents.

RBG read a dissent in 2007 from the bench in Ledbetter v. Goodyear (a wage gap case) in which she said “in our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”

Her dissent in Shelby v. Holder in 2013 set off her “Notorious RBG fandom.” Concerning the weakening of the Voting Rights Act, Ginsburg wrote that "[t]hrowing 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."

Sotomayor was always a strong liberal justice, but her dissents have become even more important since RBG’s death.

Her dissents in the face of attacks on abortion have been a vital judicial voice combatting the racism, sexism and just all-around legal nonsense coming from conservative justices.

Concerning the court’s refusal to stay the horrible Texas vigilante abortion ban, Sotomayor wrote: “Every day the court fails to grant relief is devastating, both for individual women and for our constitutional system as a whole.”

We’re all frustrated that the court is 6-3 with a conservative super-majority. I’m excited by Biden’s promise to nominate a Black woman. I hope the court’s make-up will change in a few years and she will get to deliver important majority opinions. Until then, I look forward to the fresh point of view of this new justice in her dissents.

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