In the long struggle to make the United States more just and perfect, court majorities have made some horrific mistakes. When that happens, the burden falls on dissents to provide hope for the future arc of the moral universe.
Such dissents often come from the most distinguished jurists. Benjamin Curtis, for instance, was the first formally trained lawyer on the United States Supreme Court. In 1857, he dissented from the Dred Scott case that eviscerated the civil rights of African Americans, arguing that: “free persons, descended from Africans held in slavery, were citizens of the United States.” John Harlan dissented in Plessy v. Ferguson (1896) with the following famous lines:
“Our constitution is color-blind, and neither knows nor tolerates classes among citizens. … The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”
Justices Curtis and Harlan were vindicated by history, as were Justice Louis Brandeis in Olmstead v. United States (1928) regarding the right to privacy, and Justice Harlan Stone in Minersville School District (1940) regarding freedom of religion.
Today, justices unable to persuade their peers write for history, as in the 2011 dissents of Justices Ruth Bader Ginsberg (the Dukes v. Walmart case regarding workplace rights of women) and Sonia Sotomayor (the United States v. Jicarilla Apache Nation case regarding the rights of the Apache Nation).
These examples come to mind in light of recent news from California, the nation’s largest state, and education reform, which the Urban League’s Esther Bush and many others have called the greatest civil rights issue of our time.
As background, in 2012 public school student Beatriz Vergara and 8 other schoolchildren sued California for violating their constitutional rights by providing them with systematically inferior education. In 2014, Superior Court Judge Rolf Treu agreed with the students, ruling that the California educational system “shocks the conscience” in its mistreatment of students of color. Judge Treu’s decision met with immediate and widespread approval from almost every major newspaper editorial board of the left, right, and center, as well as longtime progressive education leaders such as California’s former Congressman George Miller.
Unfortunately, three California appellate judges, led by Justice Roger Boren, made a clearly flawed decision to overturn Vergara.
As I wrote at the time, I was confident that the California Supreme Court would overturn Justice Boren’s clearly flawed ruling, in part because of my confidence in two of the individual justices of that court: Goodwin Liu and Mariano-Florentino Cuéllar. Both Liu and Cuéllar have sterling reputations and have been discussed as future justices of the United States Supreme Court.