On the impact and importance of the Supreme Court's practice of publishing dissenting opinions, Chief Justice Charles Hughes said, "A dissent in a Court of last resort is an appeal ... to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."
Classic examples of such opinions "appealing to the intelligence of a future day" include Justice Benjamin Curtis' dissent in Dred Scott v Sandford, and Justice Harlan's dissent in the Civil Rights Cases.
As Justice Scalia said, "When history demonstrates that one of the Court's decisions has been a truly horrendous mistake, it is comforting ... to look back and realize that at least some of the Justices saw the danger clearly and gave voice, often eloquent voice, to their concern."
As Bomani Jones put it a recent piece for ESPN's The Undefeated, "There's nothing American about muzzling a dissenting voice, especially one whose life is the sort of story people cite as an example of the American Dream."
Last week, Jones wrote a wonderful piece, proffering his perspective on San Francisco 49ers quarterback Colin Kaepernick's decision to stay seated during the national anthem. Included among Jones' points — and quoting him here because I have neither the ability nor the standing to say them the same way, and certainly not as well or better — were the following:
"So many of those who have demanded our nation earn their respect loved it the most. Jackie Robinson loved America and served in the military, but wrote in his autobiography that he would not stand for the national anthem."
"America's remarkable stability is the product of structural resistance to fundamental change and its history is interwoven with racism that was once self-evident but now operates with winks and nods that few in power are willing to fight. To oppose racism is righteous. To deny its existence, no matter the reason, is cowardice. To treat a peaceful protest like an act of war against whiteness or America — notions used interchangeably in this debate, which is problematic — is hypocrisy."
NFL Players Association union chief DeMaurice Smith was interviewed and asked his opinion on Kaepernick's stance, the relative position of the union to support him, and about the reaction of those who say/suggest that Kaepernick (and other athletes) "should just shut up and play."
An attorney by trade, Smith's talking points were cautious and calculated, but on this point he was clear:
"We have fought against that mantra for years, right? The fan who believes that we should shut up and play… that mat means that you don't want to hear us, you just want people to entertain you. That because you've decided to buy a ticket, that somehow the people that you watch are relegated to [being] just two-dimensional person without a soul, without feelings, without rights. Well that's not the way that we approach it. We love, certainly, the game of football, but when you turn the TV off and you stop seeing the players running around on the field, I can guarantee you that they continue to exist. They still come from the neighborhoods that they come from, they still experience the things that they've experienced. They still have to fight for the things that every American is entitled to."
Worse than the voicing of the "shut up and play" sentiment coming from the uninitiated and/or simply loud-mouthed NFL fan, was news last week that the overwhelming majority of NFL front-office executives polled for their reactions and sentiments on Kaepernick's protests reacted with equal vitriol and a complete lacking of any empathy whatsoever (which could play out in an interesting way for Kaepernick, Smith, the union, and the NFL should Kaepernick be waived and find himself out of a job in the NFL).
After consultation with an NFL free-agent long-snapper and former Green Beret Nate Boyer, Kaepernick adjusted his stance slightly — still offering a sign of protest — he took a knee during the national anthem rather than remaining seated.
And, on Thursday night, he was not alone.
Boyer has become a noteworthy "voice of reason" in the ongoing debate over Kaepernick's motivation and methods of protest. Boyer famously carried the American flag out of the tunnel during his one and only NFL preseason game.
Kaepernick's shifting to taking a knee, particularly after consulting with a proud, well-spoken and well-thought-out veteran both of the armed forces and the NFL in Boyer may strike the sort of balance that takes the wind from the sails of his detractors, many of whom may, themselves, be hiding behind the pretense of having had their military-derived patriotic sensibilities offended while simply cloaking their own racism in a feigned heightened appreciation for the American flag.
Kaepernick's protest was never meant to be a purposeful affront on or of the military or those who serve to defend the very freedom that has given him the right to express his opinion. He's said as much himself, defending and/or making statements in support of the military, and consulting with Boyer to refine/revise his physical posture as a statement of his personal beliefs.
The NFL's regular season kicks off Thursday, with the first full slate of games next Sunday. Like the famous (gloved) fists of freedom of Olympians John Carlos and Tommie Smith in 1968, Kaepernick may have company, and may not kneel alone next weekend.
Carlos and Smith were joined on the podium by silver medalist Peter Norman from Australia. Though Norman, who was white, did not raise his fist, he did wear an Olympic Project for Human Rights Badge on the podium in solidarity with Carlos and Smith.
Kaepernick has stirred an important discussion; one that should be continued and explored through open discourse. With the NFL's regular season set to start this week; with Boyer as the Norman to Kaepernick's Carlos/Smith; and as athletes seem more poised and prepared to take stances on and make statements about social ills and the problems that plague our contemporary society, expect the number of players taking a knee during the playing of the national anthem to increase each week, and for their voices in the conversation to grow louder.
For those who criticize Kaepernick, and/or to the man himself in those moments where he doubts and/or weighs the present-day impact of his protest, remember the words of Chief Justice Hughes on the value of dissenting opinions.
Kaepernick's "is an appeal ... to the intelligence of a future day."