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THE COURT’S LIBERALS ARE TRYING TO TELL AMERICANS SOMETHING  
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Aziz Huq
July 17, 2025
The Atlantic
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_ Justices Kagan, Jackson, and Sotomayor aren’t merely disagreeing
with the majority’s technical readings of the law. _

, Photo-illustration by The Atlantic. Sources: Chip Somodevilla /
Getty; Drew Angerer / Getty; Eduardo Munoz Alvarez / AP.

 

In recent Supreme Court terms, Justices Elena Kagan, Sonia Sotomayor,
and Ketanji Brown Jackson have issued defiant dissents that push back
against a seemingly endless cascade of conservative opinions. The
three tend to take somewhat different approaches. Kagan has typically
focused on exposing the majority’s shoddy reasoning, Sotomayor has
underscored its complicity in wrong, and Jackson has placed it within
larger systems of oppression. One might think, just skimming the
dissents, that everything is as it should be: The Court takes cases.
It hears arguments, and it votes. Those on the losing end dissent. One
can read the majority opinion and the dissent, and see reasonable
people disagreeing courteously and reasonably. That’s how the law is
supposed to work, right? All is in order, same as it has been since
the 1920s at least.

But look closer at the dissents, and it is evident that, whatever
their differences, the three liberals agree on an overarching theme:
They no longer see the Court playing by the old game of constitutional
law. Their dissents suggest anything but an assumption of business as
usual. The three liberal justices are writing about a majority unbound
by law and its tiresome technicalities—about a majority that is no
longer doing _law_ as that term has come to be understood.

In other words, the dissents are screaming that the old game of law is
no more; we’re in a different world, they say. Their critiques of
incoherence, internal contradiction, and factual obfuscation are all
in service of this.

The practice—and the art—of a Supreme Court dissenting opinion is
relatively new. In the first four years of the great Chief Justice
John Marshall’s tenure, just one single-sentence concurrence was
issued, and no dissents. Until 1928, about 70 percent of all cases
decided had neither a dissent nor a concurrence. Only in the mid-20th
century did dissenting really take off.

In her first years on the Court, Kagan dissented, but rarely. After
the 2017 appointment of Justice Neil Gorsuch, she started to write
more frequently in disagreement, publishing
[[link removed]] 30 dissents
in just the five years after his appointment. Her rhetoric has slowly
dialed up. In her 2019 dissent
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a decision to green-light partisan gerrymanders, she wrote with
“respect but deep sadness” about the “tragically wrong”
outcome. Her dissent [[link removed]] from
a decision two years later gutting the Voting Rights Act shifted into
outrage at a majority that “writes its own set of rules” rather
than following the law. And in a 2024 dissent
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she lamented the Court’s “power grab” in disregarding the
precedent that has long commanded deference from judges to federal
agencies. Time and again, her dissents excoriate the conservative
majority’s unwillingness to follow its own legalistic rules.

Sotomayor likewise doesn’t hold back, but her most powerful lines of
attack focus on the Court’s complicity in wrongdoing. Take her
dissent
[[link removed]] in_ United
States v. Higgs_, a death-penalty case. Eschewing cold formality, she
begins with a list of names: The 13 men who, in the months before that
opinion, were executed without “orderly process,” and so probably
unlawfully. In blunt terms, she warned, “This is not justice.”

Similarly, just a few weeks ago, in the case about the nationwide
injunction preventing Donald Trump’s birthright-citizenship
executive order from taking effect, Sotomayor (rightly) warned
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“no right is safe” with a majority in the habit of rewarding
“gamesmanship” when it comes to a president to whom the
conservative justices are politically sympathetic. Her opinion is
remarkable not just for how carefully and comprehensively she
excoriates the Trump administration; she also calls out her fellow
justices, noting that the decision was “not the first time the Court
closes its eyes to noncompliance, nor, I fear, will it be the last.”
The Court, and not just a lawless administration, is the problem here.

Such a candid expression of distrust is a dramatic change in the way
that dissents work: There was a time when Ruth Bader Ginsburg
would write [[link removed]] respectfully
of how Antonin Scalia’s “attention-grabbing” dissent from one of
her equality decisions made that writing “so much better than my
first, second, and at least a dozen more drafts.” (I clerked for
Ginsburg in 2003.) It seems unlikely that Sotomayor’s writing is
intended to, or ever could, shape or sharpen the majority’s writing.

Justices in the past have avoided such elbowed writings because their
benefits have been seen as smaller than their risks. The language
Sotomayor uses, for example, might suggest to the casual reader that
the Court upheld the birthright-citizenship order, rather than just
dinging a specific procedural pathway for challenging it. Sometimes a
dissent can make a bad decision seem even worse than it really is.
This might be advantageous, if alarm is your goal, but it can come at
a cost in terms of trust and clarity.

Dissents can be self-defeating in a second way: A stinging dissent can
lead to a loss of trust among the justices themselves. The dissenter
might then have a harder time persuading a colleague who’s on the
fence in a later case. A hint of this dynamic is already evident in
some of the recent majority opinions.

The newest appointee, Jackson, has gone a step beyond Sotomayor. She
doesn’t just tell us what’s rotten at the Court; she also situates
those wrongs within the larger social and political landscape.
Judging, she shows, is not an exercise in pure and ethereal theory,
nested in abstraction. It is an act against and within the world.

Perhaps the best example of Jackson’s method is her extraordinary
and far-ranging dissent in the affirmative-action case of _Students
for Fair Admissions v. Harvard_
[[link removed]]. It starts by describing
reality, specifically the “gulf-sized race-based gaps” that
“exist with respect to the health, wealth, and well-being of
American citizens.” Writing in plain terms stripped of legalese,
Jackson imagines “two college applicants from North Carolina, John
and James” who could alike “trace their family’s North Carolina
roots to the year of UNC’s founding in 1789.” Then, she
scrupulously documents the historical ways in which John and James
inevitably and tragically stood a “gulf” apart thanks to official
and social racism. Her argument is not just about the narrow or
immediate consequences of an opinion; it describes how the Court’s
ruling cuts into the abiding wounds of our racialized past (and
present), renewing bleeding.

This year, Jackson again issued a decision remarkable for how it
placed the dispute at hand into a concrete context. This was in the
birthright-citizenship case, where what was technically at issue was
the question of nationwide injunctions. But in doing more than merely
addressing the procedural issue, Jackson seemed to describe the
administration’s effort to undo this bedrock American legal
principle of citizenship as an “existential threat to the rule of
law.” Her opinion speaks of “lawlessness” no fewer than eight
times. In a remarkable footnote, she even highlights the “dual
state” theory that I wrote about earlier this year
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drawing attention to parallels between Trump’s America and 1930s
Germany. Once again, Jackson showed that, unlike the majority, she
understands the law not just as a series of separate, abstract points,
but as a complex body of rules that add up to an integrated system,
understood only by being taken in as a whole. Rules such as the
limitation on nationwide injunctions do not exist in isolation: They
have to be viewed in light of the other limits on presidential
power—or, when it comes to the Roberts Court, their absence.

To what avail? Dissents, for all their glory, may have little power
to change the law. Justice Oliver Wendell Holmes Jr., who served on
the Court from 1902 to 1932, was known
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the “Great Dissenter,” but less than 10 percent of his
dissents ever found
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way into law. Who today even remembers the powerful dissent
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Justice Benjamin Curtis in the _Dred Scott_ case? His insistence
that Black Americans were “in every sense part of the people of the
United States” made little difference. Only the arms and the
sacrifice of the Civil War changed the law.

Even so, these writings matter. True, they aren’t about to change
the hearts and minds of committed partisan ideologues. Samuel Alito,
for example, barely changed his draft opinion that overturned _Roe v.
Wade_ after it was leaked to the public—a signal of how indifferent
he was to criticism of his illogic, disregard for legal precedent, and
callousness.

The deeper lesson of the dissents is not to be found in their piercing
yet local critiques. It is in their struggle to redeem the practices
of reason-giving and fidelity to facts against a worldview in which
those practices count for less and less. How do you use reason to
protest the eclipse of rationality? Surely that is a problem not just
for the dissenters, but for all of us.

_AZIZ HUQ [[link removed]] teaches law
at the University of Chicago and is the author of The Rule of Law: A
Very Short Introduction [[link removed]]._

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* Elena Kagan
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* Sonia Sotomayor
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* Ketanji Brown Jackson
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* U.S. Supreme Court
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* dissent
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