Updated at 9:16 a.m. ET on August 22, 2022.
To become law, a Supreme Court opinion needs the backing of five justices. That reality has forced progressive justices for almost 50 years to compromise with center-right justices, resulting in legal doctrine rife with contradictions and loopholes, which conservatives have ruthlessly exploited to pare back the rights of women, racial minorities, and the gay community. Progressive justices had to make these bargains in order to get the five votes needed to be in the majority. That’s how things work.
But now that the progressive bench has been whittled down to three, these justices’ job has changed. Now they will be writing dissents, and in a dissent, there is nothing to lose. The Court’s three liberal justices—Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—should take advantage of this new freedom and leave behind their old role as salvagers of compromise and embrace their new one as prophets of doctrinal revolution.
Writing visionary dissents is a long game—and a long game is indeed what progressives are now in. A visionary dissent plants a flag that activists, jurists, law students, and politicians can rally around. Justices Oliver Wendell Holmes Jr. and Louis Brandeis’s dissents in early-20th-century free-speech cases are widely celebrated classics. These dissents began a process that overturned the original understanding of the First Amendment as offering a few scant and narrow protections to our modern conception of it as celebrating self-expression, robust debate, and even criticism of the government.
In more recent memory, conservatives have been the ones to wield the power of a strong dissent effectively. For example, Justice Antonin Scalia wrote a solo dissent arguing that because the president has total control over the executive branch, Congress cannot create an “independent counsel” who is not fireable by the president. This dissent has been so influential that it is widely understood as governing law, even though the majority opinion in the case has never been formally overturned or scaled back. Indeed, the dissent recently plagued Congress’s attempts to pass a new law to protect Special Counsel Robert Mueller’s investigation into Donald Trump, and its premises were the foundation for Court opinions that hampered attempts to protect the independence of the civil service. This year’s Dobbs decision is perhaps the clearest example of why dissents matter: In the foundational Roe and Casey abortion cases, Justices William Rehnquist and Clarence Thomas wrote dissents that became blueprints for the majority opinion in Dobbs.
Today’s dissenters—minus Jackson, who was not yet on the Court when the Dobbs decision came down—missed their first major opportunity in Dobbs. Rather than look to the future, the three progressive justices (then including Stephen Breyer instead of Jackson) writing together focused on the norm of precedent and pined for past decisions that embraced “compromise” and “balance.” This is as weak an approach as they come. The price of that “moderation” for years has been rulings that put a woman’s right to choose on death’s doorstep by permitting bad-faith regulations in the first trimester under the guise of ensuring that “a woman apprehend the full consequences of her decision.” Even more disturbing, if progressives ever manage to retake the Court, the progressive dissenters’ endorsement of precedent will by then pose an obstacle to a restoration of a woman’s right to choose because such a decision would inherently overturn Dobbs.
The Dobbs dissenters should have recognized that this was a moment to begin developing the next generation of progressive jurisprudence. That long-range vision would have required tossing the reigning doctrinal tests based on the always-suspect idea of substantive due process and instead rooting the right to an abortion in our Constitution’s protection of sex equality under the equal-protection clause. On that basis, a future Court—imagine the progressive Court of 2040—might be able to strike down regulations whose true purpose is to make it impossible for women to procure an abortion in the first trimester.
Next term, which starts in October, the Court is going to take up the question of affirmative action, and the conservatives are almost certain to jettison the entire thing. Progressives in response should abandon what’s long been the stated rationale for such programs: diversity. All understand that colleges do not pursue intellectual, religious, or other forms of diversity but rather try to ensure the inclusion of marginalized racial groups. Moreover, the concept of diversity turns minority students into a means, “a classroom accessory” to enhance the education of their white peers. Rather than cater to the diversity rationale, progressives, as they too infrequently have, should reground affirmative action as reparations for a long history of racism, especially against Black people.
Lastly, gay rights remain vulnerable. Under the equal-protection clause, the Constitution prohibits governmental discrimination based on race and sex because those categories have been and continue to be the basis of systemic oppression. Despite also enduring such oppression, gay people do not receive similar protection because of a decision written by swing Justice Anthony Kennedy, which recognized the right to marry for gay people under substantive due process, the same clause that formerly protected the right to an abortion. Under this reasoning, gay people have a right to marry because marriage is, as Kennedy put it, “an individual choice central to individual dignity,” but other rights of gay people—such as protection against governmental discrimination in the workplace—fall outside its bounds. For this reason, substantive due process is and will always be a weak protection for gay people. The progressive dissenters should instead make the case that gay people are protected against discrimination in all spheres by the equal-protection clause—and no amount of free-speech or free-exercise rights can completely outweigh a person’s equal-protection rights.
Progressives need a new constitutional vision, and dissents can help lay its foundation. A single dissent can stimulate the arguments of lawyers, set the research agenda for professors, and frame the politics of social movements for generations to come. The progressive justices should invoke off-the-wall theories. They should be wild and bold. They should write legal decisions that lay out that vision so progressives across the field can begin fighting for it to become law.