Joan E Greve in Washington — Mon 11 Jul 2022
Opinions from Breyer, Kagan and Sotomayor send stark warning about increasingly radical court abandoning long-held principles
While supreme court opinions can frequently become mired in legalese that is incomprehensible to the average reader, the wording of the liberals’ dissents is often simple and direct. The opinions can read like a desperate attempt to reach beyond the court’s standard audience of legal experts to speak to the millions of people who will feel the impact of these rulings.
“Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” Sotomayor wrote in her dissenting opinion to conservatives’ decision in Carson v Makin. She concluded: “With growing concern for where this court will lead us next, I respectfully dissent.”
Paul Schiff Berman, a professor at George Washington University Law School, said dissenting opinions help foster “a culture of argument” around America’s laws. . . .
That “culture of argument” was alive and well at the supreme court this term, as the liberal justices frequently excoriated the decisions delivered by their conservative colleagues. In one particularly biting dissent, Kagan predicted that the court’s decision in Federal Election Commission v Ted Cruz for Senate would “only bring this country’s political system into further disrepute”.
“In discarding the statute, the court fuels non-public-serving, self-interested governance,” Kagan writes. “It injures the integrity, both actual and apparent, of the political process. I respectfully dissent.”
In a number of instances, the liberals take issue with the majority’s presentation of the facts of a case.
That dynamic was evident in Kennedy v Bremerton school district, a case involving a football coach who sued his public school district over the right to publicly pray after games. When Justice Neil Gorsuch delivered the majority’s decision, he said the coach, Joseph Kennedy, had “lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks”.
In her dissent, Sotomayor notes that Kennedy had not actually been fired over his actions, and she even included photos to contradict Gorsuch’s characterization of the coach’s “quiet prayer of thanks”. One photo shows Kennedy kneeling at the 50-yard line of the football field, surrounded by dozens of players and holding a helmet aloft.
“As someone who has followed that case, the way that the majority described the facts at hand were so far from reality,” said Lindsay Langholz, director of policy and program at the progressive group American Constitution Society. “It struck me as [Sotomayor] using whatever tool was available to her to really underline just how egregious the manipulation of the facts was in that case.”
. . . The liberal justices’ outrage over their conservative colleagues’ presentation of facts is evident in their dissent to Dobbs v Jackson Women’s Health, which reversed the nearly 50-year-old precedent of Roe. . . .
Perhaps the most striking aspect of the liberals’ dissenting opinions this term is the justices’ repeated warnings about attacks on the institutional integrity of the court.
In her dissenting opinion in West Virginia v Environmental Protection Agency, Kagan warns conservatives’ decision to severely limit the federal government’s ability to curtail greenhouse gas emissions threatens the separation of powers.
“Let’s say the obvious: the stakes here are high,” Kagan writes. “The court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.”
Berman said warnings like Kagan’s reflect the distinctive nature of this term’s dissenting opinions. “They are sounding an alarm – not just about a difference of judicial philosophy in a particular case, but about the radical attack on settled expectations and the ongoing legitimacy of the supreme court itself,” Berman said.
That theme reverberates throughout the liberals’ dissent in Dobbs, which they conclude by warning that the court’s decision to overturn the key precedent of Roe “breaches a core rule-of-law principle” and “places in jeopardy other rights, from contraception to same-sex intimacy and marriage”.
“It undermines the court’s legitimacy,” the liberals write. “In overruling Roe and Casey, this court betrays its guiding principles. With sorrow–for this court, but more, for the many millions of American women who have today lost a fundamental constitutional protection–we dissent.”
Olatunde Johnson, a professor at Columbia Law School, said the closing lines of the Dobbs dissent stand out to her because of the liberals’ bleak assessment of the court.
“This is saying, not only is this violating the notion of rule of law and stability. It’s not just that I disagree with you; it’s that you are doing something out of the bounds of constitutional lawmaking and that it threatens the way we’re going to be seen by the larger public,” Johnson said. “That’s really strong language.”
But if the liberals’ dissenting opinions paint a dire picture about the state of American democracy, they could also offer glimmers of hope for those who are distraught by the court’s rulings this term.
After all, dissenting opinions have previously paved the way for a reconsideration of the court’s past decisions.
Perhaps most famously, Justice John Harlan’s lone dissent in Plessy v Ferguson, which enshrined the racist doctrine of “separate but equal” into American law, was later cited by the lawyers who advocated for its reversal in Brown v Board of Education.
“It certainly gives me hope, and I think it also gives me a sense of comfort that there are at least three justices on the court who see what’s happening,” Langholz said. “If we can build on that coalition within the court, maybe we can get back to a place where the court is not ruling by fiat.”