Friday, October 25, 2019

The Dissent Option

Guest Blogger

For the symposium on Robert TsaiPractical Equality: Forging Justice in a Divided Nation (Norton 2019).

Nelson Tebbe

            In his elegant book, Practical Equality: Forging Justice in a Divided Nation, Robert Tsai urges egalitarian lawyers and judges to respond to political polarization by compromising. When they find themselves unable to attain ideal equality, as they often will, lawyers on the left should embrace constitutional concepts that can do some of the same work while winning enough agreement from the other side to be implemented. Practical substitutions for principled equality can include procedural due process, rationality review, the prohibition on cruel and unusual punishment, and free speech.

            Compromise can be justified for all the reasons Tsai suggests. Although the solutions it enables are nonideal, they may be preferable to stalemate and therefore permissible or even obligatory in the real world, all things considered. Moreover, as Tsai notes, settlement can lower the temperature of conflict. And finally, second-best solutions can sometimes pave the way for first-best solutions.

            Yet egalitarians could respond to opposition in another way—they could dissent. That option receives less attention in Practical Equality, but it ought to be considered as an alternative to concession under certain circumstances. I offer this amendment in an appreciative review of Tsai’s book that is forthcoming in Constitutional Commentary.

Constitutional actors in a polarized political environment sometimes take positions not simply to articulate principles that can inform an eventual compromise, but also to widen the window of acceptable interpretations or else to shift that window in a favorable direction. They may make assertive constitutional arguments even though they know that doing so will decrease the likelihood of success in the near term because they believe that staking out such stances will increase the probability of favorable outcomes in the medium term. Manipulation of the Overton Window can be especially potent where it is patterned and asymmetric. When an opponent is engaging in tactics like these, concession may be self-defeating. Instead of moving government policy in the direction of justice or lowering the temperature of conflict, it may embolden inegalitarian constitutional arguments.

            This dynamic can characterize appellate courts, which are Tsai’s central concern (though often he addresses lawyers arguing before them rather than judges themselves). Egalitarian judges who find themselves in the minority on a question of equality may be faced with a choice: they can join the majority (or concur separately) with the hope of mitigating an otherwise extreme result, either in the instant case or in a line of future decisions. Or they can dissent. Which option is best sometimes can be discerned only by performing a complex calculation that includes the degree and value of concession from the other side, the likelihood of prevailing in the long run, the size and strength of the majority, and other factors. Calculations may also be specific to particular subject areas; Micah Schwartzman and I are in the process of constructing one such evaluation concerning the Establishment Clause.
In sum, dissent deserves consideration alongside compromise as an option that can be preferable for jurists on the left who find themselves unable to achieve ideal justice. Compromise has a cost that should not be overlooked: it can make the ideal constitutional interpretation look extreme or radical, and it thereby can facilitate a movement or expansion of the window of acceptable legal positions away from egalitarianism. Where some or all of the Supreme Court’s more liberal members join a second-best opinion, for example, they can frame the first-best solution as unreasonable or immoderate. And that can have deleterious ramifications for future cases and for important constitutional disputes outside courts.

Of course, this analysis only holds where judges prefer a principled outcome that they cannot achieve—where they face a strategic choice between concession and confrontation. It doesn’t pertain in the same way when they view the majority outcome as ideal, in other words. Moreover, I am leaving to one side Tsai’s distinction between practical equality and appeasement, which he strongly rejects. Tsai seems to acknowledge that judges should dissent rather than appease, as he defines that term. My question is whether they should take a stand in some other situations as well.

In a reply that is also forthcoming in Constitutional Commentary, Tsai offers several thoughtful reactions. First, he argues persuasively that “the goal of relieving suffering should be paramount.” Where an egalitarian judge faces a choice between relieving some measure of injustice by joining the majority and defending an ideal solution in a dissent, “it’s worth sometimes giving up that ringing dissent.” I agree. My only point is that foregoing a dissent has costs that should be included in the calculus, which then can become intricate. Judges should consider the possibility that embracing a second-best solution, rather than objecting, could embolden aggressive opponents.

Where I may differ from Tsai is on the quality and quantity of the costs of compromise. In his reply, Tsai suggests that dissents derive their force from the persuasiveness of their arguments, not from the number of votes they attract. Tsai has in mind the image of Justice Harlan in Plessy “stand[ing] alone against the tide of popular opinion and the collective judgment of his own colleagues.” But in our everyday world, the vote count does seem to matter. For example, the fact that Masterpiece Cakeshop was 7-2 rather than 5-4 is repeatedly highlighted to lend credibility to its outcome. To say that the size of a dissent never has consequences for the shape of the constitutional culture strikes me as not quite right.

Dissenting can have drawbacks too, as Tsai rightly observes. A “strong, accusatory dissent” may extinguish any possibility of compromise during the process of debate among justices, perhaps even causing the majority to draft a more strident opinion. That must be correct, and it is of course the probable reason that Justices Breyer and Kagan joined the majority in Masterpiece—to help shape a more palatable opinion. Furthermore, Justice Kagan wrote separately to further influence its interpretation. My narrower argument is simply that sometimes that strategy will backfire, as in situations where the majority is seeking to widen or shift the window of constitutional acceptability, and that it comes with the cost of isolating any remaining dissenters.

Ultimately, Tsai and I agree far more than we disagree. (Not surprising, given that we have written together.) If there is a dispositional difference between us, it is that Tsai is sanguine about the promise of compromise in an era of pitched political and constitutional conflict, whereas I worry that we are experiencing a more fundamental destabilization and rearrangement of the constitutional order that calls for different tactics. Of course he is right that oftentimes agreements must be struck to ameliorate the suffering of the people who are immediately affected. But conceding incremental cases may also have structural and longstanding effects that we can only dimly appreciate.

Nelson Tebbe is Professor of Law at Cornell University. You can reach him by e-mail at nt277 at

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