Five Supreme Court Dissents That Later Became the Law of the Land

Losing is underrated. Ask anyone who has lost an argument with the whole room against him and gone home certain he was right. Most of the time he was just wrong, and the room was kind to say so. But now and then he was right, and the room caught up thirty years later and named a courthouse after him. The Supreme Court has a place where that kind of loser writes down his reasons for posterity. We call it a dissent.

This is a history post, so let us tell it in order. Five dissents, five dates, five eventual vindications. Each began with one justice or a small minority holding that the Court had gotten the Constitution wrong. Each was ignored, or worse, for a time. Each later became the law. Then we draw the lessons, and we also draw the warning, because not every dissent is a prophecy, and conservatives should know the difference.

What a dissent is, and what it is not

A dissent is the written opinion of a justice who disagrees with the Court's judgment in a case. It has no legal force. It cannot decide anything. It binds no lower court, and it can be quoted by lawyers only as an argument, not as authority.

Charles Evans Hughes, who later served as Chief Justice, wrote in a 1928 book that a dissent in a court of last resort is an appeal to the brooding spirit of the law and to the intelligence of a later day, when a better decision may correct the error the dissenter believes the Court has made. It is a famous thought, and it fits the five cases below well.

Four points frame what follows.

One. A dissent is not proof that the dissenter was right. Many dissents were wrong and deserved to lose.

Two. The ones that matter share a method. They hold the Court to a principle the Court itself already professed, whether text, history or the logic of the Constitution.

Three. Timing is not tidy. Some dissents were vindicated in three years and some in nearly sixty.

Four. The lesson for conservatives is about the long game. The courts are not won in a term. The argument for a correct reading, made patiently and in good faith, is often the one that lasts.

One: Harlan in Plessy v. Ferguson (1896)

The facts are familiar. Louisiana passed a law requiring separate railway cars for white and Black passengers. Homer Plessy, who was of mixed ancestry and was chosen by a citizens' committee to test the law, sat in a car reserved for whites and was arrested. The Court, by a vote of seven to one, upheld the law under the doctrine of "separate but equal." Justice Brown wrote for the majority. Justice Harlan wrote the sole dissent. (Justice Brewer did not participate.)

Harlan was a Kentuckian, and his dissent was a statement of principle:

Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

He also predicted that the decision would in time prove to be as pernicious as the Dred Scott decision. He understood that a law forcing citizens apart by race and calling it equal was a legal fiction with a clear purpose.

The vindication came in Brown v. Board of Education (1954), when a unanimous Court held that separate educational facilities are inherently unequal, and in the cases that followed. The Court did not cite Harlan's phrase as authority in Brown, but the principle of equal citizenship under law is his. We examine the whole opinion in Justice Harlan's Lone Dissent in Plessy and the Colorblind Constitution, and the originalist case that Brown was right in Can an Originalist Defend Brown v. Board? Yes, and Here Is the Case.

Lesson: A principle stated clearly at a bad moment can wait fifty-eight years and still be right. Harlan did not invent a new constitutional theory. He read the Fourteenth Amendment as written.

Two: Stone in Minersville School District v. Gobitis (1940)

In the late 1930s, Pennsylvania schoolchildren who were Jehovah's Witnesses refused, on religious grounds, to salute the flag in school. The school district expelled them. The Court, by a vote of eight to one, upheld the expulsions. Justice Frankfurter wrote for the majority, reasoning that national unity justified compelling the salute and that the courts should defer to the school board and legislature. Justice Harlan Fiske Stone wrote the lone dissent.

Stone argued that the Constitution does not permit the state to compel a person to express a belief he does not hold, and that the Court had abandoned its duty to protect minorities from majorities. He said, in substance, that the guarantee of freedom of conscience would be empty if the government could force a child to affirm a creed.

The vindication took three years. In West Virginia State Board of Education v. Barnette (1943), the Court overruled Gobitis, and Justice Jackson wrote one of the most famous passages in American law:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Notice that conservatives have particular reason to value this case. Compelled speech is a conservative worry in our own time, as 303 Creative Was About Compelled Speech, Not a License to Refuse Customers explains. Barnette is its ancestor.

There is also a modest irony that the dissent in this case was written by a justice who had a reputation for deference to legislatures. Stone's footnote in an earlier case, United States v. Carolene Products (1938), had suggested that the Court should look more closely at laws that burden discrete and insular minorities. He applied that thought here.

Lesson: The test of a principle is whether you hold it when the majority wants the opposite and the cause is popular. Wartime pressure was building, and the Court gave way. It took only three years, and a changed Court, to repair the error.

Three: Black in Betts v. Brady (1942)

Betts, a Maryland man indicted for robbery, was too poor to hire a lawyer and asked the trial judge to appoint one. The judge refused. Betts represented himself and was convicted. The Supreme Court, six to three, held that due process did not require a state to appoint counsel for every poor defendant; it depended on the circumstances of the particular case.

Justice Black dissented, joined by Justices Douglas and Murphy. He argued that the Sixth Amendment's guarantee of the assistance of counsel was a fundamental right, binding on the states through the Fourteenth Amendment, and that a fair trial for a poor man required a lawyer. Black was no soft touch, and his reasoning rested on his reading of the text and of the Amendment's history.

The vindication came twenty-one years later in Gideon v. Wainwright (1963). Clarence Earl Gideon, accused of breaking into a Florida poolroom, was refused appointed counsel, defended himself and was convicted. He wrote a petition in pencil from prison, and the Court granted review and appointed a lawyer, Abe Fortas, to argue the case. The Court unanimously overruled Betts. Justice Black wrote the majority opinion.

Few moments in the Court's history are as neat: the dissenter of 1942 writing the Court's opinion of 1963.

The case also holds a point for conservatives who worry about the criminal justice system. The state has all the resources, and the defendant, innocent or guilty, faces it alone unless the Constitution says otherwise. A conservative commitment to limited government and to the presumption of innocence is served, not undermined, by the right to a lawyer.

Lesson: Rights that depend on "special circumstances" are rights that wait on a judge's mood. A clear rule, grounded in the text, protects the person who has the least power.

Four: Holmes in Abrams v. United States (1919)

In the aftermath of the First World War, Jacob Abrams and several other Russian immigrants were convicted under the Sedition Act of 1918 for distributing leaflets that criticized American intervention in Russia and called for a general strike. The Supreme Court upheld the convictions, seven to two. Justice Holmes, joined by Justice Brandeis, dissented.

Holmes had, only months earlier in Schenck v. United States, written the Court's opinion introducing the "clear and present danger" test and upholding another conviction. In Abrams he sharpened his thinking. He wrote that the ultimate good desired is better reached by free trade in ideas, and that the best test of truth is the power of the thought to get itself accepted in the competition of the market. He said the Constitution is an experiment, as all life is an experiment, and that we should be eternally vigilant against attempts to check the expression of opinions we loathe.

The doctrine took decades to harden. It moved through a long series of cases. It arrived at its modern form in Brandenburg v. Ohio (1969), a per curiam opinion holding that the government may not punish advocacy unless it is directed to inciting or producing imminent lawless action and is likely to do so. The defendant in that case was a Ku Klux Klan leader convicted under Ohio's criminal syndicalism statute. The Court struck down the law.

Conservatives should relish this one. The speech protection that Brandenburg guarantees covers every unpopular voice in America, including conservative ones on a campus or a city council. The principle protects the speaker you detest because it must protect the speaker you love.

Lesson: The dissent that wins on the long arc often does so by being more careful, not less. Holmes wrote the dissent that corrected his own earlier overreach, and the correction lasted.

Five: White and Rehnquist in Roe v. Wade (1973)

The last dissent is the one conservatives know best, and it was a two-justice dissent. In Roe v. Wade (1973), the Court held, seven to two, that the Fourteenth Amendment's concept of personal liberty includes a right to terminate a pregnancy. Justice White, joined by Justice Rehnquist, dissented. In the companion case, Doe v. Bolton, White described the Court's decision as an exercise of raw judicial power.

Rehnquist's separate dissent made two historical points that proved durable. He argued that the Court's "compelling state interest" framework had no basis in the Fourteenth Amendment's text and was a judicial invention. And he noted that at the time the Fourteenth Amendment was adopted in 1868, a significant number of state and territorial legislatures, at least thirty-six by his count, had laws limiting abortion, which made it hard to claim that the Amendment's framers meant to forbid such laws.

The vindication came in Dobbs v. Jackson Women's Health Organization (2022), which overruled Roe and Planned Parenthood v. Casey. Justice Alito's majority opinion rested on the same two grounds: that the right to abortion is not mentioned in the Constitution and that it is not deeply rooted in the nation's history and tradition. We read the opinion closely in Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent, and ask why even scholars who liked the result thought the original was weak in Roe v. Wade Was Weak Law Even to Scholars Who Liked the Result.

Forty-nine years from dissent to vindication is the longest wait on our list, and it is worth noticing why it was so long. The dissenters did not win by changing their argument. They won by keeping it, and by building, over decades, the scholarship, the litigating organizations and the judicial appointments that gave the argument a chance to be heard. That is a long game indeed.

Lesson: A dissent is an investment, and some take half a century to pay out. It requires the patience to keep making the case in the law reviews, in the briefs and at the ballot box where judges are chosen.

The strongest objection, answered

An honest skeptic will say: "You picked winners. For every Harlan there are a hundred dissenters who were wrong and stayed wrong. And you included Roe, which is a contested example, because it flatters your side."

The objection is fair, and it deserves a straight answer in four parts.

One. We did pick winners, and we said so. The point is not that dissents are usually right. It is that the dissents that last share features. They rest on the text and history, they bind the dissenter to a principle he would apply against his own side, and they answer the majority's reasoning rather than dismissing it.

Two. There are famous dissents on the other side of the ledger. Justice Curtis's dissent in Dred Scott (1857) was right and was vindicated by the Civil War amendments. But conservatives must also remember dissents that were wrong. Plenty of dissents in the Lochner era argued for results later accepted; whether they were correct as law is an argument we have in Lochner v. New York Divides Conservatives More Than Progressives Admit. Not every future majority is right, either.

Three. Roe is contested, and that is the point. Ask whether the argument in the dissent was grounded in the Constitution's text and history, not whether you like the result. Those who disagree with Dobbs ought to answer on those terms. Conservatives should offer the same courtesy when the shoe is on the other foot.

Four. A dissent's authority is persuasion. It has none of the force of an opinion of the Court. It lives only so long as someone finds its reasons convincing. If it is vindicated, that is because the argument was good, not because the justice was important.

What conservatives should take from it

Three habits follow. First, write for the long term. Whether you are a lawyer, a legislator or a citizen writing to the editor, the argument that rests on principle outlasts the one that rests on advantage. Second, protect the dissenter's right to be heard. The man in the minority today may be right, and a country that silences him will not learn it. Third, be ready to lose without losing heart. Every justice on this list lost the day he wrote, and some lost for decades.

The Founders understood that. Hamilton wrote in Federalist 78 that the judiciary has "neither force nor will, but merely judgment," and judgment is exactly what a dissent offers. It is the only weapon a lone justice has, and it is enough, over time, to be a weapon of the law.

The case in brief

1. A dissent is an appeal to the future, and five of the Court's greatest corrections began as one: Harlan's in Plessy (1896), Stone's in Gobitis (1940), Black's in Betts v. Brady (1942), Holmes's in Abrams (1919) and White and Rehnquist's in Roe (1973).
2. Each was later adopted by the Court, in Brown (1954), Barnette (1943), Gideon (1963), Brandenburg (1969) and Dobbs (2022).
3. They share a method: they hold the Court to the Constitution's text, history and logic, and to principles the Court professed itself.
4. Not every dissent is a prophecy, so test each by its reasoning, not its result.
5. The long game belongs to those who keep making the argument, patiently, in good faith and in public.

What you can do: read one of these five dissents in full this month, then find a dissent from a decision you disagree with and judge it by the same standard.