Little is yet known about who Biden will eventually nominate to the Supreme Court to replace the retiring Justice Stephen Breyer. Her judicial philosophy remains unknown. Her approach to the shadow docket, to oral arguments, or to the rest of the court’s day-to-day work is a mystery. How she will get along with her colleagues and persuade them—or be persuaded by them—remains to be seen.
What is virtually certain, however, is that she will spend much of her tenure on the high court writing or joining dissents from the court’s most consequential decisions. She will write opinions in lower-profile cases, of course—Chief Justice John Roberts usually ensures that opinion-writing isn’t feast or famine. But with a six-justice conservative supermajority at the wheel, the three liberal justices might spend the next decade or two feeling like backseat passengers on a long, strange road trip to a place that they don’t want to go.
How Biden’s nominee dissents, in other words, may matter as much as how she writes majority opinions. And while most folks might dread having to explain publicly why their co-workers are wrong for the next few decades, for Biden’s nominee, it will also be an opportunity. The last few decades have shown how dissenting justices can have a profound influence on the shape of American law—even if it’s not an immediate one.
Dissenting is a thoroughly American feature of the judicial system, and whoever Biden nominates will be joining a long and proud tradition. In the early republic, Supreme Court justices would deliver their opinions “seriatim,” meaning one after the other without a single majority opinion, borrowing from the British tradition. But as you can imagine, this was a less than clarifying experience, so Chief Justice John Marshall labored to ensure that the court would speak with one opinion and in one voice, which often turned out to be his. More than two hundred years later, it is impossible to imagine the Supreme Court without dissents.
The role that dissents play in American law isn’t beyond debate, of course. Some critics see them as a blow to the court’s legitimacy, undermining its voice as the final arbiter of American law. Chief Justice William Howard Taft explained that, in his eyes, it was “more important to stand by the court and give its judgment weight than merely to record my individual dissent” in most cases. “Dissents, like homicide, fall into three categories: excusable, justifiable, and reprehensible,” Judge William Hirt once opined. Justice Potter Stewart was even more pithy, occasionally describing dissents as “subversive literature.”
But most justices and legal experts see them as an invaluable tool for strengthening the law, not weakening it. Justice Ruth Bader Ginsburg, who became an unlikely pop-culture figure after her strenuous dissents in the 2010s, often told her audiences that a good dissenting opinion would help sharpen a majority opinion during the court’s back-and-forth editing process. Justice William Brennan offered a more prophetic view of them in 1985, when he explained that when a justice “perceives an interpretation of the Constitution to have departed so far from its essential meaning, that justice is bound by a larger constitutional duty to the community to expose the departure and point toward a different path.”
Dissents also give an opportunity to be heard for those who might otherwise be left out from the court’s majority opinions. Justice William O. Douglas, the court’s longest-serving member and one of its more eccentric ones, said that dissenting “is the only thing that makes life tolerable for a judge on an appellate court.” More seriously, he argued that dissenting was not just useful but invaluable in a democratic society. “Certainty and unanimity in the law are possible only under a fascist or communist system, where, indeed, they are indispensable,” he opined. Melvin Urofsky, a law professor who wrote a seminal book on Supreme Court dissents, framed them as part of a higher “constitutional dialogue” that precedes and outlasts each justice who takes part in it.
Indeed, a great dissent can help enshrine a Supreme Court justice’s place in history and public memory. Justice John Marshall Harlan became known as the “Great Dissenter” for being the court’s only member to break from his colleagues’ ruling in favor of racial apartheid in Plessy v. Ferguson, as well as for his dissents in other civil rights cases in the late nineteenth century. Justice Louis Brandeis’s dissent on the unconstitutionality of warrantless wiretaps in Olmstead v. United States eventually became the law of the land in Katz v. United States in 1967. Other justices, ranging from William Brennan on the left to Antonin Scalia on the right, became famous in their own lifetimes for vividly dissenting from major rulings by the court that they thought were in error.
The most salient example to follow for Biden’s nominee might be that of Justice Clarence Thomas. Though famously silent for most of his 31-year tenure during oral arguments, Thomas has written voluminously in concurring and dissenting opinions over the years, publishing more of them than any of his colleagues. Every justice uses dissents and concurrences to explain why the court got it wrong in the case at hand. Thomas, who has a notoriously low opinion of the value of precedent, also used them to lay out how other cases and prior rulings could be overturned to achieve what he thought was the correct reading of the Constitution.
As a result, Thomas effectively laid out a conservative revolution in American law over the last three decades. Much of his energy is directed toward rulings from the Warren court in the 1950s and 1960s, the apogee of the court’s liberal era. Among more than two hundred other examples, Thomas has proposed reversing the high threshold for libel claims laid out by the court in the 1960s, which would have serious implications for American press freedom, and called on his colleagues to revisit Gideon v. Wainwright’s holding that the Sixth Amendment requires the government to provide lawyers to criminal defendants who can’t afford one.
The rest of the Supreme Court’s conservative bloc hasn’t embraced Thomas’s agenda in full, thankfully. But his colleagues on the right appear to share his willingness to revisit and remake landmark precedents in some circumstances, most notably this term on abortion rights and voting rights and affirmative action. And conservative legal activists have used his writings as a road map of sorts to achieve their goals: In some recent petitions for the court to review cases, those activists have cited Thomas’s dissents and concurrences as authoritatively as they might cite binding Supreme Court precedent.
It’s hard to tell how some of Biden’s shortlisters will write in dissent. Judge Ketanji Brown Jackson only joined the D.C. Circuit Court of Appeals last year and, accordingly, hasn’t had many opportunities to publish dissents so far. Judge J. Michelle Childs spent the last decade of her career as a federal district court judge in South Carolina. While she served by designation on three-judge appeals panels from time to time, dissents aren’t something that Childs would have had the opportunity to do during her day-to-day judicial work. District court judges can only dissent from themselves.
The highest-profile shortlister with experience writing dissents is Justice Leondra Kruger, who has served on the Supreme Court of California since 2015. Even then, Kruger is somewhat inscrutable on this aspect of her work. An analysis earlier this month by the California Constitution Center found that Kruger wrote the second-fewest dissents of any of the court’s justices. This can be partly attributed to her place as the court’s median justice—it’s hard to write dissents when you’re often writing or joining the majority opinion—but it also may stem from temperament. Where she appears to be most comfortable is in writing concurring opinions, where she writes the second most of any justice. Even then, she uses them “only to explain her nuanced departure from the majority’s reasoning or conclusion,” the analysis noted.
It’s possible that Biden’s nominee will have the opportunity to deliver a thunderclap of a dissent in one case during their Supreme Court tenure, a Harlan-like or Brandeis-esque scorcher that gets favorably cited by another generation of justices a half-century later. But Thomas has shown a different path for a young liberal-leaning justice to take: that of the prophet in the wilderness, not just dissenting from the majority and its vision for American law but also laying out an alternative vision of her own of what the law could and should look like. It’s not as good as writing majority opinions in major cases, of course. But it’s better—and perhaps more rewarding—than implicitly accepting a right-wing counterrevolution for the foreseeable future.
