Most people hear court decisions described in simple terms: who won, who lost, and which side had the majority. But some of the most important ideas don’t begin with the majority — they begin in dissent.
A dissent isn’t just a disagreement. It’s one of the judiciary’s most important accountability tools. When judges write dissents, they often explain why power needs limits. These opinions can serve to inform future jurists about how best to manage the balance of power across the three branches.
This Women’s History Month, we recognize women jurists who have used dissent to defend those checks and balances. Judges like Justice Ketanji Brown Jackson, Judge Patricia Millett, and the late Justice Ruth Bader Ginsburg have used their voices to defend a simple truth: No branch of government should operate without constraints.
Let’s begin with Justice Ketanji Brown Jackson, who offers a clear example of how dissent can challenge executive power.
Not So Fast, Says Jackson
Some of the Supreme Court’s most significant decisions happen in the middle of the night, through emergency orders issued with no opportunity for oral argument, which is why we call it the “shadow docket.” Justice Jackson has quickly become one of the leading critics of this approach.
One recent example is when the Supreme Court intervened through an emergency dispute over the Department of Government Efficiency (DOGE)’s attempt to access Social Security records. After a federal judge blocked the task force from accessing the systems over privacy concerns, the Supreme Court allowed access through an emergency order. Justice Jackson dissented, writing of the government’s plea for “urgency”: “That sentiment has traditionally been insufficient to justify the kind of extraordinary intervention the Government seeks. But once again, this Court dons its emergency-responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them,” warning that the Court was not doing due diligence in the case.
Although she is the newest justice, Jackson has made it clear that how the Court decides cases matters just as much as what it decides. At a recent lecture in Washington, she warned that “this uptick in the court’s willingness to get involved with cases on the emergency docket is a real, unfortunate problem,” and adding to that trend “is not serving our Court or our country well at this point.” Her dissents offer a reminder that when executive actions raise serious questions, the Court should take the time to get it right, not just get it done.
But the debate over executive power doesn’t stop at the Supreme Court. Major disputes over executive power often begin at the U.S. Court of Appeals for the D.C. Circuit, which hears many cases involving federal agencies, regulations, and presidential authority.
Millet Draws the Line on Executive Power
Judge Patricia Millett has used dissent to defend Congress’s role in setting limits on that power. One example was Trump v. Wilcox, a case involving whether the president could remove members of independent federal agencies without cause. The dispute centered on Gwynne Wilcox, a member of the National Labor Relations Board, who challenged her removal from the board after the administration argued that the president had the authority to dismiss officials.
Writing in dissent, Millett argued that allowing the removal would disregard decades of precedent protecting the independence of agencies that were created by Congress. “I cannot join a decision,” she wrote, “that uses a hurried and preliminary first-look ruling by this court to announce a revolution in the law that the Supreme Court has expressly avoided, and to trap in legal limbo millions of employees and employers who the law says must go to these boards for the resolution of their employment disputes.”
The majority allowed the removals to proceed while the case moved forward, but Millett’s dissent highlighted what was at stake: whether presidents could reshape independent agencies, designed to be protected from political interference, by removing the officials who lead them. Several similar issues about executive power and agency independence are already reopening this debate.
But dissent doesn’t end in the courtroom. Sometimes it reaches beyond the bench and helps reshape the law itself.
When Dissent Changes the Law
In 2007, the Supreme Court ruled in Ledbetter v. Goodyear Tire & Rubber Co. that Lilly Ledbetter had waited too long to sue for pay discrimination. The Court insisted that the legal clock started when the pay decision was made, even though Ledbetter didn’t discover discrimination until years later. Justice Ruth Bader Ginsburg strongly disagreed.
Writing in dissent, Ginsburg argued that the Court misunderstood how pay discrimination actually works. Unequal pay can often develop quietly over time and can remain hidden for years. Under the Court’s ruling, many workers would lose the chance to challenge discrimination in the future. Ginsburg insisted that if the Court would not fix the problem, then, “once again, the ball is in Congress’ court to correct this Court’s parsimonious reading of Title VII.”
Congress did.
Two years later, lawmakers passed the Lilly Ledbetter Fair Pay Act of 2009, following through on Ginsburg’s plea.
Dissent is not easy. It can be lonely work. But it is essential.
Whether warning the Court to slow down, defending limits Congress placed on executive power, or calling on lawmakers to correct a flawed ruling, judges like Jackson, Millett and Ginsburg show why dissent matters.
Democracy depends not just on who holds power, but on who is willing to question it.
Abeke Teyibo is the digital communications strategist at Alliance for Justice.