When is it time to dissent?

Marco Basile.

Veasey Conway/Harvard Staff Photographer

Nation & World
When is it time to dissent?

Legal, constitutional scholar suggests looking to judges’ practices for wider lessons

Liz Mineo

Harvard Staff Writer

April 10, 2026 4 min read

Calling this “an age of dissent,” legal and constitutional historian Marco Basile urged aspiring lawyers to learn to deal with the complexities of disagreement in the practice of law and in life.

“Both as lawyers and as persons of faith, not just blind followers, we will inevitably wrestle with questions of whether to disagree and how to do so productively,” said Basile, assistant professor at Boston College Law School, during a talk sponsored by the Catholic Law Students Association at Harvard Law School.

Dissent is inherent to our legal system, but also to faith, said Basile ’08, J.D. ’15, Ph.D. ’16. While law is about disputes and disagreements, faith becomes richer by probing and questioning rather than blindly accepting institutional precepts, he said.

Basile served as a clerk for Justice Ruth Bader Ginsburg on the U.S. Supreme Court and Judges David Barron and Paul Watford on the federal courts of appeals. He urged Basile’s students to look for lessons in both law and religion on how and when to dissent.

“There is a lot we can actually learn from judicial dissent about how to navigate that challenge,” said Basile.

It is done for different reasons and can take various forms, he said. For instance, Justices William Brennan Jr. and Thurgood Marshall dissented in every death penalty case that came before them.

“Normally judges don’t do that,” said Basile, “but in death penalty cases, Brennan and Marshall dissented over and over again. It was a matter of integrity.”

Judges can also manifest their disagreement in hopes of influencing the majority opinion or persuading other institutions of a different view.

An example of that is Justice Ruth B. Ginsburg’s 2007 dissent in Ledbetter v. Goodyear Tire and Rubber Company, he said. In that case, the majority found Title VII of the Civil Rights Act of 1964 imposed a strict 180-day limit for bringing workplace discrimination lawsuits. Ginsburg argued Congress should amend the law as its deadline was too restrictive and unfair.

Two years later, Congress did so, passing the Lily Ledbetter Fair Pay Act.

“Of all her dissents, the one Justice Ginsburg was most proud of is Ledbetter,” said Basile. “She wrote it for Congress. She asked Congress to fix it, and, in that instance, Congress did it like almost immediately.”

When judges dissent, they can also do it in an attempt to correct errors out of concern for the “verdict of history.”

“Sometimes, judges are trying to correct something by writing to the future, to a future generation, or in a very particular sense, for the court of history,” said Basile.

Ultimately, the big question when it comes to dissent is knowing when to do it, said Basile.

Lawyers should be mindful of the costs and consequences in time and resources of taking opposition — and the possibility of being incorrect.

“You might be wrong, and the fact that most of your colleagues disagree with you is often an indication that you might be wrong,” said Basile. “You have to balance powerful reasons for disagreement with some quite serious costs to dissenting.”

A practicing Catholic, Basile said he relies on his faith to decide when to let something slide and when to speak up.

He said he finds inspiration in the story of Nicodemus, a biblical figure who appears in the Gospel of John, as an example of someone who wrestled with doubts and found resolution by confronting them directly without fear or favor.

“We live in an age of dissent and disagreement, and it’s worth asking these big questions,” said Basile. “When it comes to the deeper question of dissent: ‘How do I know what to do?’ I’m inviting you to think of your faith, from whatever tradition, as a really important resource … It can be valuable practice for developing your conscience or your inner life … and enabling you to know when and how to speak up or stay silent or walk out, whether you confront this problem in a law office or a church or a nation.”