It is impossible to imagine constitutional law without dissent. Powerful and evocative, judicial dissent suggests roads not taken and points up law’s fundamental contingency. Though often criticized, dissent has numerous positive aspects. This paper considers a benefit of dissent that is borne out by equality cases. The paper first outlines two categories of dissent and, second, canvasses section 15, including a detailed discussion of a recent, sharply divided Supreme Court decision. The paper suggests that dissents are associated with richer, more complex accounts of equality. Borrowing the language of Sunstein, the paper proposes that a divided decision that is the result of failure to reach agreement on “deep” issues is preferable to one that, as the price of unanimity, remains “shallow”.
"The Upside of Dissent in Equality Jurisprudence."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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