Janus and the Movement Dissent

Public approval of the United States Supreme Court has fallen to record lows, driven by Americans who object to the Roberts Court’s conservative jurisprudence. This Article explores how incisive, bold, and creative dissents aimed at social mobilization can bolster ordinary citizens who feel estranged from this Court. Using intellectual history tools, the Article shows that Justice Kagan’s 2018 dissent in Janus v. AFSCME created a dialogic relationship between the Supreme Court and labor activists and liberal academics. The dissent amplified rhetoric pioneered by union leaders and scholars, disseminating it to a mass audience. After Janus, the labor movement and its allies deployed the dissent in political organizing, litigation, and storytelling. Overall, the dissent became a mobilizing force that channeled constitutional alienation into constitutional construction. The Article also contextualizes the Janus dissent among other demosprudential dissents, with a focus on those of Justices Scalia, Ginsburg, and Sotomayor.

The Article challenges the juricentric and prospective lens that scholars use to evaluate Supreme Court dissents. The Janus dissent embodies a genre of dissent aimed at movements and contemporary constitutional meaning making, not just influencing future courts. The Article also defends movement dissenting against institutionalist critiques. By refusing to accept the finality of the Court’s decisions, demosprudential dissents create discursive space for popular resistance and reimagination that allows disempowered citizens to feel constitutional ownership. Movement dissents can moderate and channel anger at constitutional decisions, repairing faith in the process of constitutional explication in the long run.

We cannot play ostrich. . . . In the chill climate in which we live, we must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. We must dissent from the fear, the hatred and the mistrust. We must dissent from a nation that has buried its head in the sand, waiting in vain for the needs of its poor, its elderly, and its sick to disappear and just blow away. We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and the absence of moral leadership. We must dissent because America can do better, because America has no choice but to do better.
—Justice Thurgood Marshall

The most common way people give up their power is by thinking they don’t have any.
—Alice Walker