WHY DISSENT MATTERS

“I dissent.” Two words, likely most associated with the late and notoriously great Justice Ruth Bader Ginsburg, who served 27 years on the U.S. Supreme Court. She famously ended her dissenting opinion in Bush v. Gore (2000) with that singular phrase. (The decision to conclude her opinion with “I dissent,” rather than the traditional “I respectfully dissent,” has been widely noted.) Her opinions and dissents are legendary, but are not the focus of this piece. The focus of this piece is the value of dissent and its historically undeniable ability to right the ship.

Justice Ginsburg’s “I dissent” became a symbolic call to action, representing strength and resilience against majority decisions that she believed were wrong.

Today, we are the dissent. Every act of resistance, every letter written and phone call made to a local, state or federal representative, every protest or demonstration attended is a dissent. Just this week, our acts of dissent resulted in the City Council’s MAGA faction withdrawing its proposed amendments to the City’s General Plan 2035. Sometimes, and especially on the hottest Arizona morning in front of Schweikert’s office, it may feel like we’re tilting at windmills, wasting our time. But, history tells us otherwise.

Very recently, our MAGA Supreme Court allowed Trump to obliterate millions of dollars in National Institute of Health grants. In her dissent from that opinion, Justice Ketanji Brown Jackson wrote a blistering rebuke of the majority: “For a cautionary tale about lawmaking on the emergency docket, look no further than this newest iteration. . . .Only systemic reform can reverse the massive damage wrought by a corrupted majority that has thoroughly distorted our constitutional system and enabled a tyrannical executive with nearly unlimited power.” That change is coming. It may take awhile, but it is coming.

It may seem like dissenting opinions are of no value because, after all, every dissenting opinion is on the losing side of the issue. History has taught us otherwise. Some of the most egregious and infamous Supreme Court decisions were eventually righted by reflecting the opinions of those Justices who dissented. They served as blueprints for the next generation of leaders and activists. Here are just a few.

The Dred Scott v. Sandford (1857) decision, considered by many legal scholars to be the worst ever rendered by the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, abolishing slavery and declaring all persons born in the United States to be citizens of the United States. At least one of the two dissenting opinions (Justice Benjamin Curtis) later was quoted in United States v. Wong Kim Ark (1898) reaffirming birthright citizenship.

In Plessy v. Ferguson (1896), the majority upheld racial segregation under the "separate but equal" doctrine. Justice John Marshall Harlan’s scathing dissent famously declared "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens". Harlan's lone dissent became a rallying cry for the civil rights movement and was ultimately vindicated 58 years later in Brown v. Board of Education (1954), declaring state-sponsored segregation in public schools unconstitutional.

In Olmstead v. United States (1928), the majority ruled that wiretapping was not a violation of the Fourth Amendment because it didn’t involve physically entering a home. Justice Louis Brandeis dissented, arguing for a constitutional "right to be let alone," foreshadowing a broader interpretation of privacy. His expansive view of privacy became the law in Katz v. United States (1967), ruling that the Fourth Amendment protects people, not just places, against unreasonable searches and seizures.

Korematsu v. United States (1944) upheld the internment of Japanese Americans during World War II. Justice Robert Jackson dissented, arguing that "racial discrimination in criminal procedure" had been validated for all time. While (amazingly) the decision was never formally overturned by the Court, it was thoroughly discredited in 2018 by... wait for it ... Chief Justice John Roberts who stated it was "gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.” I know. Right? You have to suspend disbelief for a moment to recognize that it’s the same Roberts who’s currently sitting on the bench while the Trump Regime interns immigrants with no due process.

And, here’s a more recent one that everyone likely is aware of. In Ledbetter v. Goodyear Tire & Rubber Co. (2007), the Notorious RBG dissented from the majority ruling, which had held that an employee's window to sue for pay discrimination began with the first discriminatory paycheck, even if the employee was not aware of it. Justice Ginsburg read her dissent from the bench - - a rare move - - and called on Congress to act. That dissent spurred Congress to pass the Lilly Ledbetter Fair Pay Act of 2009, resetting the 180-day statute of limitations with each new discriminatory paycheck.

History tells us that righting the ship may not be fast and furious, and many of us may not live to see a lot of this Supreme Court’s and the current Regime’s destruction and damage repaired. But rest assured that if history teaches us anything it’s that "[t]he arc of the moral universe is long, but it bends toward justice." Martin Luther King, Jr. It may take some time but, make no mistake, our collective dissenting voices will be echoed in better government, better legislation, and a more fair and just Supreme Court...eventually.

"The greatest dissents do become court opinions and gradually over time their views become the dominant view. ... So that’s the dissenter’s hope: that they are writing not for today but for tomorrow.” Justice Ruth Bader Ginsburg, NPR, May 2, 2002.

May our dissent now make our tomorrows better than today.