Law & Honor: The heart of Dissent, the Dissent at the heart

Some dissents are powerful simply because they dare to stand up to the larger majority. Some, because they foretell the future. Others, because they can shake the soul of an undead body politic.

When viewed externally, dissents can function as gateways to alternate universes. Universes that time and history might have fashioned with an ever so slight change in their trajectory. And indeed, sometimes they become universes that are spontaneously willed into existence by the sheer force of the dissent.

Yet, to people without the gift of vision or, foresight, dissents would appear brazenly blasphemous- as living sins in the age in which they are born.

Justice Ruth Baden Ginsburg, ever the frail & shy dissenter, spake thus while explaining what "dissent" meant to her : Dissents speak to a future age... the greatest dissents do become court opinions & 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.

The dissent penned by Justice Alito (Thomas, J & Gorsuch, J joining as they have often done in the past) in the Lombardo vs St. Louis decision, a case of unreasonable restraint by police officers of a detainee in their custody that resulted in death by suffocation of the detainee, promises to hold many in its thrall, if only they ventured to wade through the opinions.

The decision may never quite gain the popularity or notoriety that decisions concerning behemoth multi-nationals might ordinarily acquire. But that cannot detract from its magnitude- not to the discerning eye. Because it boldly articulates what others only speak of only in whispers and frontally attacks an oft-deployed strategy of the United States Supreme Court that seems to be neither here nor there.

Considering the trends in the judicial opinions in the recent times, one might wonder if Pragmatism has indeed come a full circle in the land of its birth? Could its progenitors, Charles Sanders Peirce, William James, Chauncey Wright, John Dewey, George Herbert Mead et al have foreseen this turn? How would Richard Posner, Ronald Dworkin or Edward Levi have assessed the trends from the last two decades? Or, is it indeed true that "the great weakness of Pragmatism is that it ends by being of no use to anybody." as T. S. Eliot, the modernist par excellence, had once framed the issue.

In a paper written in 1990, Posner had made a similar point quite sharply:

"Without going any further, we can see that "truth" is going to be a problematic concept for the pragmatist. The essential meaning of the word is observer independence, which is just what the pragmatist is inclined to deny. It is no surprise, therefore, that the pragmatists' stabs at defining truth-truth is what is fated to be believed in the long run (Peirce), truth is what is good to believe (James), or truth is what survives in the competition among ideas (Holmes)-are riven by paradox. The pragmatist's real interest is not in truth at, all, but in belief justified by social need."

Back to the Alito dissent in Lombardo (2021)- this is how he framed it:

"I cannot approve the Court’s summary disposition because it unfairly interprets the Court of Appeals’ decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police officers and the city of St. Louis. The Court of Appeals held that the defendants were entitled to summary judgment because a reasonable jury would necessarily find that the police officers used reasonable force in attempting to subdue petitioner Lombardo’s son, Nicholas Gilbert, when he was attempting to hang himself in his cell. In reaching this conclusion, the Court of Appeals applied the correct legal standard and made a judgment call on a sensitive question. This case, therefore, involves the application of “a properly stated rule of law” to a particular factual record, and our rules say that we “rarely” review such questions. See this Court’s Rule 10. But “rarely” does not mean “never,” and if this Court is unwilling to allow the decision below to stand, the proper course is to grant the petition, receive briefing and argument, and decide the real question that this case presents.

The Court... is unwilling to face up to the choice between denying the petition (& bearing the criticism that would inevitably elicit) & granting plenary review (& doing the work that would entail). Instead, it claims to be uncertain whether the Court of Appeals actually applied the correct legal standard, & for that reason it vacates the judgment below & remands the case. This course of action may be convenient for this Court, but it is unfair to the Court of Appeals. If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier.

We have two respectable options: deny review of the factbound question that the case presents or grant the petition, have the case briefed & argued, roll up our sleeves, & decide the real issue. I favor the latter course, but what we should not do is take the easy out that the Court has chosen.”

Justice Alito's dissent is plain, yet savage. It cuts to the bone of the limpid strategy adopted by the majority, a strategy that disposes without deciding.

Dissents by the explosive triumvirate (Alito, Thomas, Gorsuch) are not a rarity. Sample this from the June Medical abortion decision from not so long ago:

The majority bills today’s decision as a facsimile of Whole Woman’s Health v. Hellerstedt, 579 U. S. ___, ___ (2016), and it’s true they have something in common. In both, the abortion right recognized in this Court’s decisions is used like a bulldozer to flatten legal rules that stand in the way.

(Alito)

Today’s decision claims new victims. The divided majority cannot agree on what the abortion right requires, but it nevertheless strikes down a Louisiana law, Act 620, that the legislature enacted for the asserted purpose of protecting women’s health. To achieve this end, the majority misuses the doctrine of stare decisis, invokes an inapplicable standard of appellate review, and distorts the record.

(Alito)

When judges take it upon themselves to assess the raw costs and benefits of a new law or regulation, it can come as no surprise that ‘[s]ome courts wind up attaching the same significance to opposite facts,’ and even attaching the opposite significance to the same facts. It can come as no surprise, either, that judges retreat to their underlying assumptions or moral intuitions when deciding whether a burden is undue. For what else is left?”

(Gorsuch).

To arrive at today’s result, rules must be brushed aside and shortcuts taken. While the concurrence parts ways with the plurality at the last turn, the road both travel leads us to a strangely open space, unconstrained by many of the neutral principles that normally govern the judicial process. The temptation to proceed this direction, closer with each step toward an unobstructed exercise of will, may be always with us, a danger inherent in judicial review. But it is an impulse this Court normally strives mightily to resist. Today, in a highly politicized and contentious arena, we prove unwilling, or perhaps unable, to resist that temptation. Either way, respectfully, it is a sign we have lost our way.”

(Gorsuch)

The Court’s current formulation of the?stare decisis?standard does not comport with our judicial duty under Article III which requires us to faithfully interpret the Constitution. Rather, when our prior decisions clearly conflict with the text of the Constitution, we are required to ‘privilege [the] text over our own precedents.’ Because?Roe?and its progeny are premised on a ‘demonstrably erroneous interpretation of the Constitution,’ we should not apply them here.”

(Thomas)

The Supreme Court “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.”

(Thomas)

Sometimes, one must simply act for reasons that even reason cannot fathom. As Justice Scalia once confessed: We had to do something [in?Bush v. Gore], because countries were laughing at us.?France?was laughing at us.

Dissent has acquired a dimension of its own in recent history. It has become the pillar and proof of democratic institutions, the test of Man's new found individualism, the toast of his historical progress. It is also a uniquely human trait- for animals and beasts are incapable of dissent, they must settle their differences with a fight to death.

Dissents will always have to carry greater life-force than the voice of the majority, a greater conviction, fortitude and determination- for dissents must swim against the tide. After all, dissents have a heavier onus to discharge- if they are to matter at all, they must attempt to expose the fallacy and overwhelm the majority opinion, or be utterly and hopelessly lost to irrelevance in time. To use a sport metaphor- dissents must, so to speak, come back from behind, if only to equalize the score. To win, they must be greatly superior to their rival- the majority opinion, and must convince the spectator of their superiority in no unequivocal terms.

And dissent is deeply tied with the notion of honor. For when its easiest to maintain silence and stand with the majority, those with honor would feel compelled to choose to step away, even if it means to stand alone- simply because its the right thing to do in the minds of the dissenter. Regardless of the price to be paid.

Truth must be told, even if it bleed the tongue to tell, for as Cardozo summed it almost a hundred years ago, "The final cause of law is the welfare of society".

Those interested in pursuing the subject of honor any further might be persuaded to read The Honor Code by Kwame Anthony Appiah and Why Honor Matters by Tammler Sommers. Would be futile to attempt a summary of their brilliant work.

[The image shows Zidanes (in) famous headbutt when Materazzi whispered about Zidane's sister. France may have lost the World Cup because Zidane was red-carded, but Zidane returned a hero to his native land.]