When Dissent Is All There Is

Justice Ruth Bader Ginsburg’s career offers a lesson for today’s Supreme Court.

The three liberal members of the Supreme Court
Fred Schilling, Supreme Court of the United States; The Atlantic

By the time the Supreme Court started its new term on the first Monday of October, a tumultuous summer of midnight orders and unsigned opinions had left no doubt about who was in charge. A five-member conservative bloc, anchored by three Trump-appointed justices, had largely stripped Chief Justice John Roberts of leverage and the three remaining liberals of any hope of striking a meaningful alliance with him. The best the liberals can hope for now, even with the chief justice on their side, is a 5–4 loss.

What path is open to them? Can they play a weak hand in a way that can make a difference? Is building bridges worthwhile, or has the time come to burn them all down? These are the questions hovering over the opening of a term that is likely to produce major decisions on abortion, religion, and the Second Amendment.

Perhaps some answers can be found in the memory of Ruth Bader Ginsburg, who died in September 2020 and was replaced with astonishing speed by Amy Coney Barrett. Powerless in her later years to change minds on the increasingly conservative Court, Ginsburg used the tool at her disposal: her voice. The purpose of her blunt and quotable dissenting opinions was not only to call out the majority when she believed it was wrong but to shape how the public understood the Court’s actions.

It’s easy to forget that this was not always Ginsburg’s way. For most of her years on the public stage, there was nothing flamboyant about her. Quite the opposite: A woman of few, precisely chosen words, she seemed content to fade into the background. During her years on the federal appeals court in Washington, she was so well known for her friendship with that court’s conservatives, particularly Antonin Scalia, who moved up to the Supreme Court in 1986, that many leaders of the women’s movement didn’t quite trust her when Bill Clinton chose her to fill his first Supreme Court vacancy, in 1993. In a lecture Ginsburg delivered months before her nomination, she emphasized the importance of dialogue and said that the “effective judge … strives to persuade, and not to pontificate,” and “speaks in a moderate and restrained voice.”

She didn’t become the “Notorious RBG” until much later; the bestselling biography Notorious RBG: The Life and Times of Ruth Bader Ginsburg came out in 2015. By then, Ginsburg had been on the Court for 22 years. It wasn’t so much that Ginsburg had changed as that the Court and the culture had changed around her.

The Court had other liberal dissenters during those years, of course. But it was Ginsburg—feminist, grandmother, iron-willed cancer survivor—who inspired women to dress their young daughters for Halloween in mini judicial robes with fanciful lace collars.

Just as she was emerging as the Court’s voice of resistance, progressives started shouting for her to retire. They wanted her to step down in time for President Barack Obama to name her successor. Whether he could have navigated an overtly progressive nominee—or any nominee, for that matter—through a hostile Senate is an open question. But criticism of Ginsburg’s failure to retire has, if anything, only grown since her death. The criticism is at once completely fair and unduly harsh. Ginsburg was hardly the only one to believe that Hillary Clinton would succeed Obama. And she almost outlasted Trump. She needed four more months and didn’t get them. The worst one can say is that she placed a bad bet.

What is certain is that, if she had retired earlier, the country would never have known the Ginsburg of the Trump years, a justice who embodied resistance to the Court’s rightward turn that preceded his administration and accelerated during it. Her simple and vivid language made what was going on clear to any American listening. For example, her “umbrella” dissent in Shelby County v. Holder, the 2013 decision that cut the heart out of the Voting Rights Act, became a meme that stood for much more than an objection to a single ruling. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet,” she wrote.

Despite having preached the virtues of collegiality for her entire judicial career, Ginsburg now grasped the dissenting opinion as a platform from which to speak over the Court’s head and engage the public directly. A Harvard law professor, Lani Guinier, calls this “demosprudence”—a jurisprudence of the people—to signify that not only courts but social movements as well engage in lawmaking. It’s clear in retrospect that Ginsburg in dissent provided something America needed, even craved: someone to call out, with the gravitas bestowed by age and position and suffering, what was happening to the Court.

In her final years, Ginsburg was often joined in dissent by Sonia Sotomayor, and less often by the other two members of the shrunken liberal bloc, Stephen Breyer and Elena Kagan. The two pairs of justices differed not over substance but over strategy. Breyer and Kagan had not given up on the prospect of extracting some modest compromise even from profound disagreement, if not in the case at hand then perhaps in the next one. Ginsburg and Sotomayor, retaining no such hope, made a different calculation: to shout about what was happening in words that ordinary people didn’t need a law degree to understand.

Although Ginsburg and Sotomayor had arrived at the same place, their trajectories were very different. By the time Sotomayor joined the Court in 2009, she didn’t have to worry about burning bridges. She had no bridges. If she wanted to make a difference, it would have to be in the world outside the Court, using her position as leverage and her “American dream” life story as her currency.

She would write a best-selling memoir of her pre-judicial life, My Beloved World, published in English and Spanish, and inspire young people struggling to rise from humble beginnings like her own. She would push the button to drop the ball in Times Square on New Year’s Eve, and don a Yankees jersey to toss out the first pitch. She would chat on The View with the program’s hosts, who addressed her as Sonia.

That is not to suggest that Sotomayor was inattentive to the work of the Court—quite the opposite—only that she was deliberately projecting herself onto a bigger canvas than the Court and modeling a different dimension to serving there. She would tell the truth as she saw it. She would raise her voice, alone if necessary.

Sotomayor’s dissenting voice was at its most powerful in her objection to what she called an “expedited spree of executions” during the last months of the Trump presidency. The federal government had not executed anyone for 17 years, but from midsummer until four days before Inauguration Day, the Supreme Court enabled the administration to carry out an astonishing 13 executions. When a death-row inmate asked for a stay, the Court denied it. When a lower court granted a stay, the Supreme Court vacated it. Sotomayor was usually joined in dissent by Breyer and Kagan, but the voice on the page was hers.

The final case was the most troubling. Dustin Higgs had been convicted of participating in a triple murder on federal property in Maryland. Under the Federal Death Penalty Act, a death sentence must be carried out “in the manner prescribed by the state” that imposed it. But Maryland had repealed its death-penalty statute. So the Justice Department asked a judge in Maryland to designate Indiana, where Higgs was imprisoned, as the appropriate state for reference under the statute. The judge refused—he had no authority to decree such a fiction. Next the Justice Department went directly to the Supreme Court and, on January 15, got what it wanted: an order to the district court to treat Indiana as if it had been the state that imposed Higgs’s death sentence. The unsigned order offered no explanation for the majority’s reasoning.

Sotomayor’s 10-page dissenting opinion radiated fury. She began by listing the names of the 12 federal inmates who had been executed since July, an obvious allusion to the “Say their names” mantra of the Black Lives Matter movement. She knew that she was not going to change any colleague’s mind. Her project was to make as precise a record as possible of the Court’s behavior, in contrast to its unsigned orders offering little or no reasoning and cutting off any chance for a public airing of the issues. “There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor wrote. “Those whom the Government executed during this endeavor deserved more from this Court.”

Higgs was killed at 1:23 the next morning, January 16—four days before Donald Trump would board Air Force One for the last time.

Years from now, it is likely to be Sotomayor’s “execution spree” objection that will endure, rather than the unsigned, reason-devoid orders that enabled the executions. And we will remember Ginsburg’s “umbrella” dissent better than the majority’s contorted explanation for gutting the Voting Rights Act.

It may feel like small comfort, but dissents have a way of catching history’s attention. Certainly Ginsburg’s friend Antonin Scalia believed that. In 1998 he wrote, “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting … to look back and realize that at least some of the justices saw the danger clearly and gave voice, often eloquent voice, to their concern.”

This article has been adapted from Linda Greenhouse’s forthcoming book, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and 12 Months That Transformed the Supreme Court.