The value of dissenting opinions

The history of dissenting opinions in U.S. court cases is a decidedly mixed one—there is still a raging debate about whether they should even be considered in review of precedential decisions (answer: yes, they need to be)—but there’s no debating how ubiquitous they have become in the modern era.

As it turns out, they are not only numerous but, properly dispensed, effective agents of change within the rule of law, that is, as valuable tools in developing the law through precedent, interpretation, and application as opposed to progressive judicial lawmaking, or change for progressive change’s sake.

Just as important, no matter that some conservatives whine these days about the need for right-leaning judges and justices to compromise and build consensus, vigorous dissenting opinions that refuse to do so are vital to the preservation of conservative jurisprudence. If anything, we need more, not less, and in my book the role model for every judge in the country should be Wisconsin justice Rebecca Grassl Bradley, who penned seven dissents in the 2019-20 term alone despite being a member of the court’s then-conservative majority.

Dissenting opinions are written by the minority in a case to explain their points of view and to point out how “jiggery-pokery” the majority interpretation is, in the words of the late justice Antonin Scalia, another great dissenter. They help preserve minority logic and arguments and, ostensibly, contribute to the public debate.

But while unanimous or near-unanimous opinions can correctly be seen as examples of social cohesion and political harmony, and were favored by U.S. Supreme Court from our founding years through 1940, they can also be smothering blankets extinguishing or covering up important truths. A dissent in a big decision is the hole in the blanket that lets oxygen through.

The first major dissenter was justice William Johnson, Jr., in the early 1800s, notable for dissenting at all in an age of almost universal unanimity on the court. But dissent he did—during his tenure, he wrote about half of all published dissenting opinions.

The flood gates for dissenters have long since opened, fount-like. During the last century on the U.S. Supreme Court, Scalia was the modern-day Johnson, with his sharp dress-downs and accusations of “legalistic argle-bargle.” And, again, here in Wisconsin, the leader of the state Supreme Court’s dissenting pack—and sometimes just a leader out there on her own, accompanied by no pack—is Rebecca Bradley.

It’s no accident that two of most prolific dissenters of our time are conservatives, and it’s not just because we live in an age of progressive dominance of major institutions, though we undoubtedly do, but because judicial dissent, like all dissent, is by its very nature part of the organ system of our republic’s body politic, designed to resist judicial collectivism, protect pluralism, and keep the entire system breathing.

It’s not that unanimous or near unanimous decisions are inherently bad or inherently progressive. There are rafts of good ones and of conservative ones, but a system requiring unanimity, as some progressives call for now on the federal level to counter recent conservative-majority split decisions, or that defaults to de facto unanimity over long periods of time betrays a long-term bias toward conformance thinking that disables creativity and innovation and biases against individual freedom.

As the old saying goes, it’s hard to think at all when everybody thinks alike. That’s true in society at large and it’s true for the courts.

More about why dissent is conservative in a moment, but first it’s worth considering just how functional legal dissent can be in a democratic republic, and leave it to none other than the very progressive Ruth Bader Ginsburg to tell us how so, as she did in a speech to the Harvard Club in 2009 (reprinted in the Minnesota Law Review). Ginsburg, no stranger to dissenting opinions herself, said such opinions served useful purposes both in-house and externally.

“My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation,” Ginsburg said.

In other words, beef it up, baby, to avoid being embarrassed, and Ginsburg cited a Scalia dissent she said was so impressive that it caused her to write a dozen drafts of the lead opinion she was charged with crafting. Then, too, Ginsburg said, sometimes a justice buries his or her own dissent if it is successful in winning accommodations before the final decision. Justice Louis Brandeis was apparently the champion of this tactic, so much so that a whole volume of his unpublished dissenting opinions was collected and published.

Not to mention, Ginsburg said, sometimes a dissent is so powerful and persuasive that it becomes the majority opinion itself.

Ginsburg’s real meat and potatoes was her assessment of the external impact of dissenting opinion. She quoted chief Justice Charles Evans Hughes: “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

Ginsburg cited the Dred Scott decision as an egregious error the court needed to fix, in large part based on justice Benjamin Curtis’s dissent, but perhaps even more important was John Marshall Harlan’s dissent in the 1896 decision Plessy v. Ferguson, which sanctioned a racist separate-but-equal doctrine. Harlan’s dissent was so powerful that it became a rallying cry fifty years later of the burgeoning civil rights movement, and it inspired future justice Thurgood Marshall, who observed that he relied on it as an attorney in Brown v. Board of Education in 1954, which overturned Plessy.

Beyond triggering re-evaluations of substantive decisions, Ginsburg said dissenting opinions work “to attract immediate public attention and, thereby, to propel legislative change.” That’s a different kind of revisiting, but a re-visitation of previous decisions nonetheless. The bottom line was, Ginsburg wrote, while there is value in unanimous decision, there is sometimes an even greater value in dissent, when important constitutional matters are at stake. California Supreme Court justice Jesse Carter had made the same argument in 1953, and even better articulated not only the value but the critical need for dissenting opinions.

“The right to dissent is the essence of democracy; the will to dissent is an effective safeguard against judicial lethargy; the effect of a dissent is the essence of progress,” Carter wrote.

A court always needs one or two judges with deep convictions and strong feelings and who are not afraid to express themselves, Carter wrote.

A powerful defense against error, a strong influencer of legislation, a primer often explaining the majority opinion from another perspective—a dissenting opinion can do all that and more, but it often serves another, more important purpose, Carter wrote: It can serve a protective role for rights when the majority does in fact commit an egregious constitutional error. It keeps on the flicker of light that is the constitutional right—it pokes that hole in the blanket of oppression—and serves as springboard for a new round of resistance and opposition to reassert its promises and guarantees.

“To prevent laws enacted by the Legislature from making too great inroads into the rights of the individual guaranteed by the Constitution is the plain but often neglected duty of the courts,” Carter wrote.

All of which brings me to Wisconsin Supreme Court justice Rebecca Bradley, who perhaps has done more than anyone in Wisconsin in recent times—at least as much as anyone—to keep the flame of liberty burning brightly.

In her written lead opinions, in which she has written for the majority, she has warned of the authoritarian claims our state government has wallowed in since 2018; in her concurring opinions she has targeted progressives and supposed conservatives alike when they have succumbed to the dead-end political consumerism of treating constitutional rights as clothes in the closet, to be discarded or given more fashionable stitchings depending on which way the seasonal wind is blowing.

Especially in her dissents, hers is impressive work. She has fearlessly cut through thinly veiled totalitarianism, laying waste to arguments that public emergencies can justify the suspension of constitutional rights. In her dissents, she has challenged the orthodoxy of modern progressivism by exposing its departure not only from U.S. but also Wisconsin tradition. By explaining in her dissents why certain decisions are not merely bad policy but threaten the very fabric of democracy, she has given constitutional conservatives across the state not merely a springboard but a rocket pad upon which the people can not only sense the possibility of a renaissance of rights but become energized to achieve it.

That is so not because she has compromised and tried to build consensus but because she has not. She has instead stayed true to the fundamental principles of the constitution.

Indeed, she has, in her most recent dissents, pilloried the high court’s majority for usurping the legislature’s jurisdiction in lawmaking, such as hijacking the abortion issue from the legislature, and she again took aim at the progressive majority for forsaking “the rule of law in an attempt to advance” a political agenda by legalizing unmanned drop boxes in elections, which, without needed standards that the court could not apply, could wind up being such things as unattended cardboard boxes left in a clerk’s driveway, she warned.

In refusing to hear a case after the 2020 election in which Donald Trump challenged the administration of absentee ballots, Bradley accused the court of “forsaking its duty” by refusing to determine if elections officials failed to comply with the law. Her dissent rose to much-needed-but-almost-always lacking rebellion against the administrative state.

When the courts ordered jury trials suspended during the early months of the pandemic, it was Bradley—joined by justice Dan Kelly—poking the hole in the veil of bipartisanship consensus, saying the court’s action “nullifies our Constitution.”

“The Wisconsin Supreme Court suspends the constitutional rights of Wisconsin citizens, citing the exigency of a public health emergency” she wrote in dissent. “. … If the people’s constitutional rights may be suspended by the judicial branch in the name of a public health emergency, our freedom is in peril; our republic is lost.”

There was in this powerful dissent a call to action, another of a dissenting opinion’s lasting values: “If the government will not protect constitutional rights designed to preserve our freedom, it is up to the people to reclaim them.”

Talk about poking a hole in the consensus veil of totalitarianism via emergency. And that dissent contained the core argument in the majority opinion a month later when, in Legislature v Palm, the court overturned health secretary Andrea Palm’s order confining all people to their homes, forbidding travel, and closing businesses in response to the pandemic.

Ostensibly, the court found that Palm did not follow statutory rulemaking procedures, but the larger point was that an unelected official had exceeded her authority under the law: “We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority …. upon which Palm claims to rely.”

In her concurring opinion, Bradley underscored that that was the same point she was making in the previous dissent of the court’s order to suspend jury trials—that the court “acts as the backstop against encroachments by any branch.”

What Bradley was pointing out could not be missed: The reason the majority overturned Palm’s order was the same reason the court should not have suspended jury trials—an impermissible overreach by a branch of government, no matter the exigent circumstances. Likely Bradley’s prior dissent served as internal influence for the court as it grappled with emergency powers and constitutional rights in the earliest days of the pandemic, an internal reminder of the constitutional limits of power to at least consider.

Another dissent written by Bradley had a more traceable direct effect on state policy, a 2018 dissent in Movrich v Lobermeier.

In the case, the court ruled that Jerome and Gail Movrich, who sought to place a pier on the flowage waters adjacent to their property, could not do so because the land under the water was privately owned by David and Diane Lobermeier, who had denied them permission. Land under a flowage can be privately owned.

The decision, which Bradley disagreed with, uprooted decades of Wisconsin law that riparian owners have the right to a pier, and Bradley’s dissent is especially relevant, not merely because she correctly decoded case law to determine who has riparian rights and what those rights are but because her dissent became the philosophical foundation for a subsequent statute overturning the majority opinion in the case.

In the dissent, which was joined in part by liberal justices Shirley Abrahamson and Ann Walsh Bradley, Rebecca Bradley pointed to a string of previous cases defining a riparian owner as “one who holds title to land abutting a body of water” and “the rights of a riparian owner are based upon his title to the ownership of the banks or uplands, and such ownership gives him exclusive privileges of the shore for the purposes of access to his land and the water,” including the right to have a pier.

“Riparian rights in Wisconsin are sacred,” Bradley wrote. “For many, waterfront property in Wisconsin provides more than merely a place to live —it affords a lifestyle. ….. None of this is possible absent riparian rights. … The majority opinion sweeps away these cherished and longstanding property rights …”

The opinion was cited over and over in legislative hearings to statutorily overturn the Supreme Court’s 4-3 decision, and in the end, thanks to a powerful dissent, the law was changed.

While progressives author many dissenting opinions—and especially when conservatives control the Supreme Court, state or federal—critics have generally targeted conservatives for subscribing to an “anti-consensus opinion philosophy,” pointing often to Bradley in Wisconsin and on the federal level to Scalia.

In a 2021 paper, “The Demise of the Law-Developing Function: A Case Study of the Wisconsin Supreme Court,” by Skylar Reese Croy, then the executive assistant to chief justice Patience Drake Roggensack, Croy wrote that “[c]onservatives tend to value the ‘great dissenter,’ who always views the resolution of a legal dispute through his or her subjective lens.”

In other words, they are anathema to compromise.

The paper focused on decisions with no majority and the damage fractured decisions have on conservative jurisprudence, and he makes articulate arguments about decisions so fractured there is no majority opinion at all to become precedent, or, taken together, the separate opinions confuse rather than clarify the law. All of which damages conservative jurisprudence and is leading to a demise of the courts’ law-developing function, he argues. Croy’s goal is “to persuade conservative justices to abandon their anti-consensus building philosophy.”

While there is much to his argument about no-majority decisions, the paper seemingly suggests throwing out the baby with the bath water, meaning that, in toto, the broader aim to build consensus is more damaging to conservative jurisprudence in the long term.

That’s because the court’s law-developing function in a conservative sense—precedent, interpretation, and application of the law—is different from the court’s “law-developing function” in the progressive mind. In the latter world view, to develop the law is to write the law, and thus consensus building through compromise in a way that allows them to do so (the only way consensus can be achieved) ultimately dilutes conservative principles of actionable liberty into a mass of groupthink.

Without dissent there is no actionable liberty to live, and without actionable liberty there is no principled liberty to defend.

Or as justice Jesse Carter wrote: “To my mind it is of far greater importance that a man raise his voice in defense of the right as he sees it than that a court should be subjected to ridicule because that man has seen fit to speak with the courage of his convictions. Freedom of speech is one of the greatest rights guaranteed to the individual by the Bill of Rights and is an essential ingredient of any democracy. It applies no less to the dissenting judge than it does to the average citizen.”

And, Carter concluded, “history has shown that the view expressed by the minority often becomes the view of the majority.”

The surrender of dissent for compromise denies history; the myth of consensus becomes the reality of totalitarianism. A dissent in and of itself shields against conformity and collectivism, and stands as an example of individual liberty and of an independent judiciary.

In any democracy, and especially in its courts, hail the dissenters.