What is not clear,” Urofsky argues, “is whether the dissent in the modern court is as powerful an agent of dialogue as it was in the days of Holmes and Brandeis, especially in terms of conversing with the larger society.” But Justices Scalia, Ginsburg and Roberts, in particular, are trying to reach out to join the larger constitutional debate, using all the mechanisms at hand — be it a Notorious R.B.G. tote bag or an eminently tweetable put-down. The frightening thing to contemplate is that these modes of dialogue may be as powerful a tool of dissent in the modern era as the Brandeis brief was in the past.
The current Supreme Court includes a number of individuals who are fully capable of expressing a forceful I, and each has the ability to communicate powerfully — as well as almost instantaneously — with millions of citizens. Whether this is a continuing part of a constitutional dialogue or merely constitutional performance art remains to be seen. History will surely let us know.