Strong rights protection is far from harmless. The proliferation of strong rights can frustrate the democratic will and erode the solidarity of communities… Rights can breed resentment…
Judicial dissent [is] wholly necessary. Dissent is no less a requirement in our legal system than it is in our political system. Historically, dissent is the way the voice of prophecy is heard.
I don't approve of dissents generally, for I think in many cases where I differ from the majority, it is more important to stand by the Court and give its judgment weight than merely to record my individual dissent where it is better to have the law certain than to have it settled either way.
What conservative activists understood long ago was the value of the myth of the apolitical judiciary—that by focusing their time and money on filling life-tenured judgeships with doctrinaire conservatives, they could disguise an unpopular policy agenda with the trappings of legal process. They could justify an unpopular decision by declaring that they are just interpreting the law. And by and large, the legal press corps has happily propagated this myth. Some two decades after five conservative justices functionally handed a contested presidential election to the Republican presidential candidate, most legacy Supreme Court reporters still treated the notion of acknowledging the justices’ partisan preferences as naïve and gauche.
Obviously, I too believe in a colorblind society; but it has been and remains an aspiration. It is a goal toward which our society has progressed uncertainly, bearing as it does the enormous burden of incalculable injuries inflicted by race prejudice and other bigotry, which the law once sanctioned, and even encouraged. Not having attained our goal, we must face the simple fact that there are groups in every community, which are daily paying the cost of the history of American injustice. The argument against affirmative action is but an argument in favor of leaving that cost to lie where it falls. Our fundamental sense of fairness, particularly as it is embodied in the guarantee of equal protection under the la, requires us to make an effort to see that those costs are shared equitably while we continue to work for the eradication of the consequences of discrimination. Otherwise, we must admit to ourselves that so long as the lingering effects of inequality are with us, the burden will be borne by those who are least able to pay.