Law360 Canada (June 2, 2026, 10:48 AM EDT) --

Tega Adjara

The authority of a court is commonly associated with its majority decision. It is the majority judgment that resolves disputes, establishes binding precedent and shapes the law of the day. Yet history repeatedly demonstrates that some of the most influential judicial opinions were not written by those who prevailed, but by those who stood alone. The dissenting judgment occupies a unique place within the common law tradition. It is the conscience of the court, the safeguard against intellectual complacency and often the blueprint for future legal reform.

The importance of dissent was eloquently captured by United States Supreme Court Justice Ruth Bader Ginsburg, who observed that dissenting opinions “speak to a future age.” She believed that a powerful dissent is not merely an expression of disagreement but an invitation to future courts, legislators and citizens to reconsider accepted orthodoxy. Her observation reflects a truth evident throughout legal history, namely that today’s dissent may become tomorrow’s law.

The strength of a dissenting judgment lies first in its capacity to preserve alternative legal reasoning. Courts, like all human institutions, are fallible. A dissent records a competing interpretation of the law and ensures that important arguments are not lost merely because they failed to command a majority at a particular moment in history. In doing so, dissent enriches legal discourse and promotes intellectual honesty within the judiciary.

Perhaps the most celebrated example in the United Kingdom is Lord Atkin’s dissent in Liversidge v Anderson. During the Second World War, the House of Lords upheld the government’s broad power to detain individuals without trial under emergency legislation. Lord Atkin stood alone. Rejecting judicial deference to executive authority, he famously declared that even in times of crisis, the courts must remain vigilant guardians of individual liberty. His dissent was initially regarded as a minority view. Yet over time it came to be recognized as one of the greatest judicial opinions in English legal history. Modern public law has largely embraced Lord Atkin’s approach, and his dissent is now frequently cited as a foundational statement of the rule of law.

The Canadian experience provides equally compelling examples. In Morgentaler v. The Queen, [1976] 1 S.C.R. 616, Chief Justice Bora Laskin dissented when the Supreme Court upheld Canada’s abortion provisions. Although unsuccessful at the time, his concerns regarding individual rights and state interference anticipated constitutional developments that emerged after the enactment of the Canadian Charter of Rights and Freedoms. More than a decade later, the Supreme Court in R. v. Morgentaler, [1988] 1 S.C.R. 30 struck down the abortion law as unconstitutional. While the later decision was not a direct adoption of Laskin’s reasoning, it demonstrated how minority judicial perspectives can foreshadow future constitutional change.

Canada’s legal history also illustrates the transformative influence of Justice Claire L’Heureux-Dubé, one of the Supreme Court’s most prolific dissenters. During her tenure, many of her dissents in areas such as equality rights, family law and sexual assault law attracted criticism from contemporaries. Yet subsequent jurisprudence increasingly reflected principles she had articulated years earlier. Justice L’Heureux-Dubé herself described dissent as a vehicle through which courts engage in dialogue with future generations. She viewed dissent not as judicial defeat, but as an essential contribution to the gradual evolution of legal thought.

In the United States, Justice Ruth Bader Ginsburg elevated dissent to a form of constitutional advocacy. Her dissent in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) argued that the majority’s restrictive interpretation of employment discrimination law ignored the realities faced by working women. Although she did not prevail in court, her dissent attracted national attention and inspired legislative action. Congress subsequently enacted the Lilly Ledbetter Fair Pay Act of 2009, effectively adopting the position she had championed. This episode demonstrates that dissenting judgments can influence not only future courts but also lawmakers and public policy.

Critics occasionally argue that dissent undermines certainty in the law. There is some force in the observation that unanimous judgments provide greater clarity. However, legal certainty must not be purchased at the expense of legal development. The common law thrives because it permits competing ideas to be tested over time. Dissenting judgments serve as a reservoir of legal innovation, ensuring that alternative perspectives remain available when social conditions, constitutional values or judicial attitudes evolve.

Indeed, many of the principles now regarded as self-evident were once controversial minority positions. Judicial history is replete with examples where dissents eventually became accepted doctrine. This phenomenon reflects an important reality about law. The law is not static. It develops through continuous dialogue between judges, lawyers, academics, legislators and society itself. Dissenting judgments are indispensable participants in that dialogue.

The true strength of dissent therefore lies not in immediate victory but in enduring influence. A dissent preserves arguments that might otherwise disappear. It challenges majorities to defend their reasoning more rigorously. It offers guidance to future courts confronting similar questions. Most importantly, it reminds us that justice is not always found in numbers.

Lord Atkin’s solitary defence of liberty, Chief Justice Laskin’s constitutional foresight, Justice L’Heureux-Dubé’s progressive vision and Justice Ruth Bader Ginsburg’s determination to write for future generations all illustrate a common principle. The dissenting judge may stand alone in the courtroom, but history often grants that judge the final word.

After completing his LLB at the University of East London, Tega Adjara pursued a specialized LLM in international law and the global economy. Currently, he is working for the Alberta government sentencing department.

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