Dissenting Voices in American Society: Notes on the Role of Judges, Lawyers, and Citizens

Editor: Austin Sarat
Publication Information:
- Location: Cambridge University Press, New York
- ISBN: 9781139232234
Copyright Information: All rights reserved. Reproduction requires written permission.
First Published: 2012

The volume includes multiple contributions examining dissent in American society with a focus on judges, lawyers, and citizens.

Argument Overview:
- Mark Tushnet presents a critical viewpoint on the instrumental need for dissent as articulated by Cass Sunstein in "Why Societies Need Dissent". Tushnet challenges the notion that dissent is inherently beneficial, arguing that its value is contingent upon the correctness of what is being dissented against.
Examples of Celebrated Dissents:
- Justice Harlan's dissent in Plessy v. Ferguson
- Justice Brandeis's dissent in Whitney v. California
- These dissents are revered not merely for their status as dissents but because they were correct in their arguments reflecting long-term societal values.
Situational Validation:
- Societies do not inherently need dissent; their value is measured only when dissenting opinions are indeed beneficial, hence good dissent is differentiated from bad dissent.

Romantic Tradition:
- This viewpoint, represented by commentators like Steven Shiffrin, posits that dissent is valuable as an individual expression of autonomy, even if it does not have direct utility to society.
Judicial Dissents:
- Tushnet discusses judicial dissents in statutory cases, suggesting they often lack instrumental value and may represent self-indulgence.

Social Costs: Tushnet argues that dissent can impose costs on the social order, including potential emotional distress and social discord.
Management of Dissent: Advocates for systems that tolerate dissent but are cautious about its possible societal costs. Discussions revolve around a need for careful balance in regulating dissent without outright suppression, allowing for diverse viewpoints while recognizing the potential harms.

Dissent is often shaped by a historical distrust of government, stemming from a variety of social, political, and cultural factors in American society. This includes reflections on the constitution's design to safeguard against government oppression.
Fear of Government Control: Civil liberties are underscored by the notion that any government empowered to sanction dissent could control public discourse and thus impose tyranny.

Other nations, such as Germany, India, and Canada, enforce regulations that allow for certain forms of speech to be limited or censored depending on situational ethics, unlike the U.S. which enjoys a broad interpretation of free speech, even dissent from demonstrably untrue facts.

Dissent is integral to democratic processes, warranting examination from various theoretical standpoints, particularly in contexts that challenge prevailing norms and push against societal standards.
Critiques of Dissent: Questioning whether dissent from incorrect factual assertions holds merit or hinders democratic functionality, Tushnet emphasizes the problem of distinguishing between useful and harmful dissent, especially when societal consensus holds factual inaccuracies.

Recent Judicial Cases: Tushnet examines Snyder v. Phelps and Citizens United v. Federal Election Commission to illustrate the expanding interpretations of free speech protections and dissent in U.S. jurisprudence.
The divergent views on how dissent is treated in legal frameworks imply that the value of dissent is often reassessed against historical norms and evolving social standards, further complicating governance.

The discourse around dissent remains contentious, balancing principles of free speech with the practical implications of allowing potentially harmful expressions.
Tushnet calls for continuous questioning of dissent's utility, urging that social systems must evolve to appropriately navigate the complexity of dissent to maintain societal balance, cohesion, and justice.