Revelations in Research: At What Point Does a Dissenting Opinion Become the Majority Rule?

Thanks to the inspiration and encouragement from a colleague, I embarked on writing a law journal article about women’s fundamental constitutional rights that are implicated at the intersection of family-wage work structures and women’s dual role as wage earner and primary family caregiver. In the article, I argue that family-wage work structures (structures developed around a worker without family caregiving responsibilities) are in part to blame for the stagnant progress that has marked workplace gender equality since the mid-1990s. The article proposes litigation strategies for removing family-wage barriers to women’s equal opportunity in employment.

Of the many questions and issues that I have confronted throughout the process of writing this article, one was the role of litigation in a law and social change agenda. In the article, I wanted to argue that litigation has a necessary role to play in removing family-wage barriers to employment (in conjunction with other cause-lawyering tools, such as policy, consensus-building, and grassroots organizing). But the role of litigation in social change–how effective it is, whether it should be used at all in light of the risks and resources at stake–is an issue that I constantly struggle with. And, admittedly, when I sat down to write this part of the article, I was in a “down on litigation” mood and doubtful about whether I could come up with a convincing argument that litigation should be used.

Lucky for the article, what emerged from my research swayed me. One of the reasons why is a matter of rudimentary legal history. I identified principals in court opinions not authored by the majority that slowly made their way into the status quo. The Equal Pay Act, for example, was inspired by a dissenting opinion by Justice Ginsburg. I also found that sometimes a concurrence from decades ago is the opinion that more accurately reflects the current state of the law than that which was espoused by the majority at the time. That was the case with the “sex-plus” theory of liability under Title VII, first recognized (after several failed attempts) in a 1971 case which left open the possibility that the parental status of women, but not men, could be considered in making employment decisions. Justice Marshall’s concurrence rejected this notion and is more representative of the law today. And one of my favorite discoveries was this quote in a 1969 5th Circuit dissenting opinion from a denial of en banc review: “A mother is still a woman. And if she is denied work outright because she is a mother, it is because she is a woman.” The principle behind this dissenting sentiment is directly on point with what I hope courts will eventually recognize when advocates pursue constitutional claims challenging family-wage barriers. Forty years later, in 2009, Justices Breyer and Ginsburg quoted this 5th Circuit dissent in their own dissenting opinion. While it is still not a part of a majority opinion or statute, it has arguably been elevated from a Circuit dissent on a discretionary procedural issue to a dissenting opinion by Supreme Court Justices.

The research brought dissenting and concurring opinions to the fore of my attention and peaked my interest in more closely examining their value and the role they play in shaping the law. In the examples just cited, if the majority opinions are accepted as the present state of the law, the concurrences or dissents are brief, perhaps imperfect, snapshots into the future of the law. But what about the dissenting opinions that emerge when the majority adopts what used to be a dissent? In that light, surely dissenting opinions are as frequently a reflection of the law’s past incarnations as its future ones. Dissenting and concurring opinions are not statements of law, and have little, if any persuasive value. But in addition to providing a different perpsective, they help put a debate in a historical and political context. They can provide important insight into where the law on any particular topic has been, where it is going or could go, and how litigation contributes to its development. After all, litigation gives the court an opportunity to reconsider, refine, or reform the law as it applies to a current reality.