Dissenting Opinion

Dissenting Opinion Definition

A dissenting opinion is given by a judge or judges in a court that argues contrary to the court's majority opinion. Within the dissenting opinion, the judge gives their reasoning as to why they believe the majority opinion is wrong.

Opposite of Consenting Opinion

The opposites of a dissenting opinion are majority opinions and concurring opinions.

A majority opinion is an opinion that is agreed upon by the majority of the judges regarding a particular verdict. A concurring opinion is an opinion written by a judge or judges in which they explain why they agreed with the majority opinion, but they may provide further details for the reasoning of the majority opinion.

Dissenting Opinion Supreme Court

Dissenting Opinions are somewhat unique to a few countries worldwide. Today, the United States uses a system between a civil law system, which prohibits dissents, and a common law system, where every judge speaks their own opinion. However, at the beginning of the Supreme Court's existence, all justices issued seriatim statements.

It wasn't until John Marshall became Chief Justice that he decided to start the tradition of the Court announcing judgments in one single opinion, known as the majority opinion. An opinion stated this way helped legitimize the Supreme Court. However, each Justice still had the ability to write a separate opinion if they felt the need, be it a concurring or dissenting opinion.

The ideal scenario is one where there is a unanimous decision given by the court which sends a clear message that the verdict was the best choice. However, once judges start writing dissenting opinions, it can cast doubt on the majority opinion and leaves a door open for a change later down the road.

If the judge does move forward with a dissent, they will make their opinion as clear as possible. The very best dissents make the audience question whether the majority opinion got it right or not and are written with passion. Dissents are usually written in a more colorful tone and show the judge's individuality. This is possible because they don't have to worry about compromising since technically they've already lost.

Figure 2. Supreme Court Justice Ruth Bader Ginsburg (2016), Steve Petteway, PD US SCOTUS, Wikimedia Commons

Dissenting Opinion Importance

It may seem as if the dissenting opinion is just a way for a judge to air their grievances, but it actually does a lot more than that. Primarily, they're written in the hopes that future judges will revisit the court's previous decision and work to overturn it in a future case.

Dissenting opinions usually make a note of flaws and ambiguities in the majority's interpretation and highlight any facts that the majority disregarded in its final opinion. Dissenting opinions also help lay the groundwork for reversing a court's decision. Judges in the future can use dissenting opinions to help shape their own majority, concurrent, or dissenting opinions. As Justice Hughs once said:

A further function of a dissenting opinion is to give Congress a roadmap for creating or reforming laws that the dissenting judge believes would be beneficial for society.

Dissenting Opinion Example

Hundreds of dissenting opinions have been given throughout the Supreme Court’s existence. Here are a few examples of dissents whose words made an impression on American politics and society today.

Figure 3. Dissenting Opinion Supreme Court Justice John Marshall Harlan, Brady-Handy Photograph Collection (Library of Congress), CC-PD-Mark, Wikimedia Commons

Figure 3. Dissenting Opinion Supreme Court Justice John Marshall Harlan, Brady-Handy Photograph Collection (Library of Congress), CC-PD-Mark, Wikimedia Commons

Plessy v. Ferguson (1896)

Homer Plessy, a man who was 1/8th black, was arrested for sitting in an all-white railcar. Plessy argued that his rights were violated under the 13th, 14th, and 15th Amendments. The Supreme Court ruled against Plessy, stating that separate but equal did not violate Plessy’s rights.

In his dissenting opinion, Justice John Marshall Harlan wrote:

Fifty years after his dissent, his framework was used to overturn the Ferguson case in Brown v. Board of Education (1954), which effectively eliminated the doctrine of "separate but equal."

Korematsu v. United States (1944)

The Supreme Court, in this case, mainly held that the internment of Japanese Americans after Pearl Harbor was not unconstitutional because, in times of war, the protection of the United States from espionage outweighed individual rights. Three justices dissented, including justice Frank Murphy, who stated:

The ruling of the Supreme Court was overturned in 1983, in which documents came to light showing that there was no national security threat from Japanese-Americans, vindicating the dissenters in this case.

Figure 4. Pro-Choice Rally in Wahington, DC in 1992, Njames0343, CC-BY-SA-4.0, Wikimedia Commons

Planned Parenthood v. Casey (1992)

This case upheld the majority of what had already been ruled in Roe v. Wade. It reaffirmed the right to have an abortion. It changed the first-trimester rule to a viability rule and added that states imposing restrictions on abortions causing an undue burden on women would not be permissible. In Justice Antonin Scalia's dissent, he said the following words:

His words helped create the framework to overturn Roe v Wade in Dobbs v Jackson's Women Health Organization in 2022.