[Part2-2]

Dissent on the U. S. Supreme Court

By Linda Greenhouse

Linda Greenhouse is Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School. From 1978-2008, she covered the United States Supreme Court for the New York Times.

Lilly Ledbetter was the only woman to work as a manager in a tire-manufacturing factory in Gadsden, Alabama, in the southeastern United States. For many years, and without her knowledge, she received lower pay than the men who performed the same job. When she finally learned the truth, near the time of her retirement after 19 years on the job, she brought a lawsuit, claiming that she had been the victim of illegal discrimination on the basis of sex. A jury agreed, and told the company to pay Ms. Ledbetter her missing salary, plus damages.

But in a decision in May 2007, the Supreme Court overturned the verdict on the ground that Ms. Ledbetter had filed her lawsuit too late. She had based her suit on a law known as Title VII, which prohibits discrimination in the workplace on the basis of race or sex. That law requires a worker to bring a charge within 180 days “after the alleged unlawful employment practice occurred,” and the Supreme Court said it didn’t matter that Ms. Ledbetter had no way of learning about the discrimination. She was out of luck.

The vote on the nine-member Supreme Court was 5 to 4. The dissenting opinion was written by Justice Ruth Bader Ginsburg, who was then the only woman on the court (she was joined this summer by another woman, Sonia Sotomayor.) Justice Ginsburg was so angry that she read her dissenting opinion in open court, something that justices rarely do. The justices in the majority failed to understand the realities of the workplace, she said, noting that salaries are kept secret at most companies. Finally, she observed that this case concerned not the Constitution ? on which the Supreme Court has the final word ? but a statute, which can be changed by a majority vote in Congress. “The ball is in Congress’s court,” she said.

And so it was. Congress responded by overturning the decision, amending Title VII to make it clear that the 180-day clock is re-set each time a worker receives a paycheck that reflects illegal discrimination. So the employee can still get justice no matter how long it takes to learn about the discrimination. The new law, the Lilly Ledbetter Fair Pay Act of 2009, was the first law that President Barack Obama signed, just nine days after taking office. “The response was just what I contemplated,” Justice Ginsburg said.

While this was far from the first time in the Supreme Court’s history that a dissenting opinion has proved important, it is quite rare for a dissenting opinion to achieve its goal so quickly. As with the case of Justice John Marshall Harlan’s solitary dissent from a decision in 1896 that upheld racial segregation (Plessy v. Ferguson), it often takes many years for the court and the country to see matters in a different light: it was not until Brown v. Board of Education in 1954 that the Supreme Court ruled, unanimously, that government-imposed segregation on the basis of race violated the Constitution’s guarantee of equal protection of the law.

In fact, the classic description of the role of dissent on the Supreme Court was written by Chief Justice Charles Evans Hughes, who served in the 1930’s. A dissenting opinion was “an appeal to the brooding spirit of the law, to the intelligence of a future day,” he said.

Dissenters must often be patient. Justice William J. Brennan Jr., who served on the Supreme Court from 1956 until1990, believed that the death penalty was unconstitutional. He dissented every time the court upheld a death sentence ? sometimes with a lengthy dissenting opinion, but more often with a simple notation that in his view, capital punishment was “cruel and unusual” in violation of the Constitution’s Eighth Amendment. Except for a brief period, 1972-1976, there was never a majority on the Supreme Court that agreed with him. But he persisted nonetheless. He said that he knew some people viewed his position as “simply contrary, tiresome or quixotic,” but explained that he was answering a call to a higher duty. “When a justice perceives an interpretation of the text to have departed so far from its essential meaning,” he wrote, “that justice is bound, by a large constitutional duty to the community, to expose the departure and point toward a different path.”

Justice Harry A. Blackmun, who served from 1970 until 1994, was personally opposed to the death penalty, but unlike Justice Brennan, he believed for many years that the Constitution permitted it. In old age and late in his career, he changed his mind. “From this day forward, I shall no longer tinker with the machinery of death,” he declared in a dissenting opinion just months before he retired. Justice Brennan, who by then was retired and frail, telephoned Justice Blackmun to thank him.

These examples ? Justice Ginsburg’s rapidly effective dissenting opinion on the one hand, and Justices Brennan and Blackmun’s appeal to conscience and to future generations on the other hand ? illustrate two of the uses of dissenting opinions on the Supreme Court. There are other uses as well. Justice Antonin Scalia is famous among the modern justices for the vigor of his dissents. He often uses his dissenting opinions to address the American public directly, in language more political than legal, to express his view that the majority has made a profound error. For example, in 2008, when the Supreme Court ruled that the detainees held by the United States at Guantanamo Bay, Cuba have the right to petition the federal courts for their release, Justice Scalia declared that the decision would have “disastrous consequences” and that “It will almost certainly cause more Americans to be killed.” He offered no evidence for this drastic prediction. His dissenting opinion received a lot of attention, which was probably his goal, given that he was unable to persuade a majority to his point of view. Dissenters are free to speak their mind, as Justice Scalia likes to do; they don’t have to worry about compromising with others in order to hold onto a majority.

However, sometimes persuasion within the court is the goal of a dissenting opinion. If it succeeds, the public never sees the dissenting opinion. Justice Ginsburg said in an interview last year that she once wrote a dissenting opinion that persuaded two of her colleagues to switch their positions. Her dissent thus became the opinion for a 6-to-3 majority of the court. She did not identify the case, and no one outside the court knew the history of her opinion.

At other times, justices use dissenting opinions to invite public attention to an issue that might otherwise be overlooked. This most often occurs when the court has decided not to accept an appeal in a case that one or more justices believe the court should have agreed to hear. The Supreme Court controls its own docket, and agrees to decide only about 1 percent of all the appeals that it receives. So deciding what to decide is an important part of the court’s work, an activity that has the effect of setting the country’s legal agenda. When the court declines to hear a particular appeal, no precedent is created; the issue is left open and may return to the court in a future case. A dissenting opinion in this context can serve as an open invitation to lawyers to bring the issue back with fresh arguments that might persuade the justices that this is a question they need to resolve.

Just this month [Oct. 21], for example, Chief Justice John G. Roberts Jr. and Justice Scalia dissented from the court’s refusal to hear a case about drunk driving. The question was whether, if the police receive an anonymous tip that a particular driver has had too much to drink, they can stop that driver even if he appears to be driving normally. Ordinarily, the Supreme Court’s rule is that anonymous tips, without some additional basis for suspicion, are not sufficient to permit the police to take action against a person. But the two dissenting justices argued that with 13,000 deaths in the United States every year from drunk driving, the problem is so serious that the court should consider making an exception to its usual rule. At the least, they said, the court should have agreed to hear this case, which was an appeal filed by the state of Virginia.
It is a safe prediction that more appeals on this question will reach the court soon, and that the court will accept one of them for decision in the not-too-distant future. When that happens, it will be more evidence of the importance of dissenting opinions.