Why Do Judges Dissent?

In today’s employment law class, a student asked a remarkably thoughtful question: What’s the purpose or value of a dissenting opinion? I invite my readers to answer this question by considering key dissenting opinions in Supreme Court cases.

Plessy v. Ferguson (1896). Homer Plessy bought a rail ticket for a white-only coach car. He was 1/8 black, 7/8 European (making him “octoroon"). He was arrested for violating Louisiana’s “Separate Car Act.” The Supreme Court ruled, 7-1, that “separate but equal” satisfied the equal protection clause of the Constitution. Justice John Marshall Harlan dissented, stating: “The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.”

Fifty-eight years later, his dissenting opinion became the basis for Brown v. Board of Education—the case that struck down the “separate but equal” justification for segregated schools.

Turning to today, Korematsu v. U.S. (1948) is of growing relevance. There, the U.S. ordered the detention of Japanese Americans. The Supreme Court found the detentions to be constitutional. There were two dissenting opinions. Justice Jackson said, in dissent: “A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens…”

Unlike Plessy—which was overturned— Korematsu is still “good law” (though a pernicious precedent). Will the current administration use the case as a precedent for requiring Muslims to register in a national database? This seems entirely possible. Some dissents—while spot-on— remain little more than powerful critiques of a misguided majority opinion.

Special thanks to my students! 

Photo Credit: Mike Keefe, Denver Post