The Effect of Dissent in American Jurisprudence

By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

In my previous article, “The Value of Dissent in the Supreme Court,” I enumerated arguments in favor of and against the practice of dissension in Supreme Court rulings through the lens of political science and judicial scholarship. [1] This article will approach the same issue though the perspective of legal history, and explore the influence that legal dissents have had on past Supreme Court decisions. The landmark case of Brown v Board of Education (1954), in which the Supreme Court unanimously voted to desegregate schools, so that children of all races could attend school together, was a landmark case in American history and is a credit to all the justices on the bench at the time, and particularly to Earl Warren, the Chief Justice.[2] It was, at the time, a highly controversial decision – so much so that President Eisenhower had to deploy the National Guard to enforce it.

Arguments similar to those used in the Warren Court’s ruling, however, were not new to the Supreme Court. In Plessy v Ferguson (1896), the case that upheld the constitutionality of state laws that required the doctrine of “separate but equal” as a rationale for racial segregation, Justice John Marshall Harlan dissented from the majority opinion. [3] Many of the arguments that Harlan used in opposition to racial discrimination reappeared in Chief Justice Earl Warren’s decision in Brown v Board of Education (1896). [4] In his dissension, Justice Harlan warned that the decision of the majority would “encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution.” [5] He cited the Thirteenth, Fourteenth, and Fifteenth Amendments, which abolished slavery after the Civil War and took additional measures in order to ensure the freedom and liberty of all Americans.

Justice Warren, writing the unanimous decision of the Court in Brown v Board of Education (1954), makes reference to the same three amendments in distinguishing those who were “antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” [6] Both justices censured those who intended to restrict the application of the Thirteenth, Fourteenth, and Fifteenth Amendments. They furthermore both cited the opinions of past courts that disagree with the argument they are currently proposing, and dismissed the their decisions as obscure on the basis of new evidence. Harlan claimed that prior courts made their decisions either before the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments or before the end of slavery; thus their view of African Americans was biased as the courts had only ever seen them as slaves.

Warren, meanwhile argued, “We cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v Ferguson was written.” [7] He also cites psychological studies that indicate that the “educational and mental development of Black children suffers when they are segregated on the basis of their race, because they are made to feel inferior.” [8] Warren quickly notes, “Whatever may have been the extent of psychological knowledge at the time of Plessy v Ferguson, this finding is amply supported by modern authority.” [9]

Both justices distanced themselves from the opinions of their predecessors in order to strengthen their own arguments; however, they contradicted their predecessors without condemning them, and more importantly, without undermining the power of the Supreme Court as a whole. Justice Harlan’s dissension, which served as a foundation for Justice Warren’s later opinions in Brown v Board of Education (1954), had far-reaching implications – former judges were justified in making their decisions at the time because they made decisions based on the information available to them at the time. Therefore, subsequent judges, acting on similar logic, could comfortably contradict past verdicts without fear of damaging the reputation of the Court as a whole, or of detracting from its authority.


[1] “The Value of Dissent on the Supreme Court,” Penn Undergraduate Law Journal, accessed October 29, 2015, http://www.pulj.org/4/post/2015/10/the-value-of-dissent-on-the-supreme-court.html.
[2] “Brown v. Board of Education - Black History,” HISTORY.com, accessed October 29, 2015, http://www.history.com/topics/black-history/brown-v-board-of-education-of-topeka.
[3] Ibid.
[4] “Plessy v. Ferguson - Black History,” HISTORY.com, accessed October 29, 2015, http://www.history.com/topics/black-history/plessy-v-ferguson.
[5] “Brown v. Board of Education - Black History.”
[6] Constitutional Law, Seventh Edition, 7 edition (New York: Aspen Publishers, 2013).
[7] Ibid.
[8] “Brown v. Board of Education of Topeka 347 U.S. 483 (1954),” Justia Law, accessed October 30, 2015, https://supreme.justia.com/cases/federal/us/347/483/case.html.
[9] Ibid.

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