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…
Where perceived as absolute, rights take poorly to conflict. When recognizing our neighbor’s rights necessarily extinguishes our own, a survival instinct kicks in. Our opponent in the rights conflict becomes not simply a fellow citizen who disagrees with us, but an enemy out to destroy us. Law becomes reducible to winners and losers, to which side you are on, which tribe you affiliate with. With stakes this high, polarization should not just be expected but it is indeed the only sensible response. If only one side can win, it might as well be mine. Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.
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.
But the job of courts in a pluralistic democracy isn't to please their base. It's to work to resolve conflicts, to ratchet them down rather than up. Courts should be reminding us of what we have in common. They should be granting just enough constitutional leverage on each side that we have no choice but to sit across from each other at the table, to look each other in the eye, and to speak to and hear each other. Too often, U.S. courts instead see their job in constitutional cases as declaring who's right. The answer, so often, is neither side -- or both.