How Dissents Become the Law of the Future

Introduction

When the Supreme Court announces a decision, people are often most interested in one question: who won? The winning side's opinion becomes the new law of the land, and that's what lawyers, judges, and policymakers care about most. Meanwhile, the losing opinion has no immediate impact on the law. It cannot undo a conviction or a government action. Nevertheless, many of the most important opinions in the history of the Supreme Court began life as dissents.

Throughout its history, the Court has witnessed dissenting justices challenge the majority on matters of law and policy. These dissents sometimes provide valuable insight into the development of constitutional law. They can also serve as a useful guide to the future, since they demonstrate that the law is not always as it seems.

What Is a Dissent?

A dissenting opinion is written by one or more justices who disagree with the majority opinion. While the majority opinion is immediately binding on all future courts, the dissent is merely a record of what the disagreeing justices believe.

At first glance, a dissent seems to have little value. Lower courts are not obligated to follow it, and it has no effect on past government actions. Nevertheless, it is important to remember that dissents preserve alternative points of view for the future. Justice Charles Evans Hughes once wrote that "a dissent in a court of last resort is an appeal to the intelligence of a future day." This observation is especially pertinent when it comes to dissenting opinions.

Justice Harlan's Lonely Dissent

One of the most famous examples of a dissent that changed the future is Justice John Marshall Harlan's dissent in Plessy v. Ferguson . The case concerned a Louisiana law requiring segregated railroad cars, and the Court ruled that this did not violate the Constitution. Justice Harlan was the only justice to disagree with this ruling.

Harlan's dissent argued that the Constitution was "color-blind," and therefore the Court should not have allowed racial discrimination to continue. For many years after the case was decided, segregation remained official government policy. Sixty years later, however, the Court ruled in Brown v. Board of Education that segregated schools were indeed unconstitutional. While Brown did not adopt Harlan's dissent in its entirety, his arguments were far more influential than the majority opinion from Plessy .

Privacy Before Privacy Existed

Another famous dissent concerns the right to privacy. In Olmstead v. United States , the Supreme Court ruled that wiretapping was not illegal, since federal agents could not enter a person's home and install listening devices. Justice Louis Brandeis disagreed, arguing that new technologies require new interpretations of the Constitution.

In particular, Brandeis argued that the Constitution protects "the right to be let alone." This view was not popular at the time, and Brandeis's dissent did not immediately change the law. Nevertheless, it did not take long for new forms of communication to appear. As phones, emails, and other means of communication became more common, courts began to accept a broader interpretation of the right to privacy.

Why Dissents Matter

The dissents of Justice Harlan and Justice Brandeis are just two examples of many. When it comes to constitutional law, it is important to remember that the Supreme Court does not always rule in favor of the winning opinion. Constitutional law is dynamic, and shifting social attitudes, new technology, and new evidence can lead to new interpretations of the Constitution.

A dissenting opinion preserves these alternative interpretations for the future. Moreover, dissents often change the way that constitutional law is taught. For example, law students are often encouraged to read dissenting opinions, since they demonstrate how different constitutional arguments can be applied to the same set of facts. Outside of the courtroom, dissenting opinions also provide fuel for political debates. Legislators, scholars, and journalists often use dissents to argue that existing laws should be changed.

Different Perspectives

Not everyone is likely to agree with this view of dissents. Some scholars believe that dissents are often misleading, since they can confuse the public about which views are actually supported by the Constitution. The majority opinion represents the official interpretation of the Constitution, while dissents only express the views of a minority of justices. Nevertheless, others believe that dissents actually help the public better understand the Constitution.

By explaining why different justices ruled the way they did, dissenting opinions demonstrate that constitutional law sometimes requires nuanced consideration. In the public eye, they can also help depoliticize difficult issues by showing that there is more than one way to interpret the Constitution. In short, the public should not confuse dissents with official law, but they can still be useful tools for studying the Constitution.

Why It Matters

Understanding dissents helps us better understand the Supreme Court. They demonstrate that the Court's decisions are sometimes the result of long and complicated debates. Even the most obvious-seeming opinions often conceal disagreements among justices. When it comes to constitutional law, today's minority view can become tomorrow's majority opinion.

For students of American history, dissents are also useful because they demonstrate that the Constitution is a living document. Many of the most important amendments and laws were the result of long struggles. They did not appear suddenly, but rather were the result of years of advocacy. This process can be seen in many dissents, since they often contain arguments that were later adopted by the majority.

Conclusion

The Supreme Court's majority opinions define the law, but its dissents can shape the future. Although a dissent may not change the law immediately, it can still have a major impact on the future development of constitutional law. In particular, dissents preserve alternative constitutional arguments for future courts, lawmakers, and scholars to consider. The most important precedents often began life as dissents, since they demonstrate that today's minority view can become tomorrow's majority. Their place in history is a reminder that the development of American law is not always predictable or obvious. It is a process that involves both sides of the political spectrum, and it often takes place long after a single justice has left office.