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Figure 1. United States Supreme Court Building, AgnosticPreachersKid, CC-BY-SA-4.0, Wikimedia Commons
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.
Seriatim Opinion: Each Judge gives out their own individual statement instead of being one voice.
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.
Usually, when a judge dissents, they typically state: "I respectfully dissent." However, when the judge completely disagrees with the majority opinion and feels very passionately about it, at times, they simply say, "I dissent" - the Supreme Court's equivalent of a slap in the face! When this is heard, it is immediately known that the dissenter is profoundly against the ruling.
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 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.”
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.
One example is Ledbetter v. Goodyear Tire & Rubber Co (2007). In this case, Lily Ledbetter was sued because of the pay gap between herself and the males in the company. She cited the gender equity protections in Title VII of the Civil Rights Act of 1964. The Supreme Court ruled in favor of Goodyear because Lily filed her claim too late under Title VII's unreasonable limitations period of 180 days.
Justice Ruth Bader Ginsburg dissented and called for Congress to better word Title VII to prevent what occurred with Lilly. This dissent eventually led to the creation of the Lilly Ledbetter Fair Pay Act, which changed the statute of limitations to provide more time to file a lawsuit. Had it not been for Ginsburg's dissent, that law would not have been passed.
Fun Fact Any time Ruth Bader Ginsburg dissented, she would wear a special collar, which she believed looked fit for dissent, to show her disapproval.
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:
In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law."
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."
Justice John Marshall Harlan is considered The Great Dissenter because he dissented on many cases that would restrict civil rights, such as the Plessy v. Ferguson. However, Antonin Scalia, who served from 1986 to 2016, is considered the best dissenter in the Supreme Court due to the fiery tone of his dissents.
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:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution."
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:
That is, quite simply, the issue in these cases: not whether the power of a woman to abort her unborn child is a “liberty” in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not...by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish. We should get out of this area, where we have no right to be and where we do neither ourselves nor the country any good by remaining.
His words helped create the framework to overturn Roe v Wade in Dobbs v Jackson's Women Health Organization in 2022.
Dissenting Opinion - Key takeaways
- A dissenting opinion is one that is contrary to the majority opinion in an appellate court.
- The primary purpose of a dissenting opinion is for a judge to change the other judge's minds to make the dissenting opinion the majority opinion.
- A dissenting opinion is important because it helps establish a framework that may be used in the future to overturn a decision.
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Frequently Asked Questions about Dissenting Opinion
What did Dissenting Opinion mean?
A dissenting opinion is an opinion that contradicts the majority's opinion in an appellate court.
What does dissenting opinion mean?
A dissenting opinion is an opinion that contradicts the majority's opinion in an appellate court.
Why is a dissenting opinion important?
A dissenting opinion is important because it helps establish a framework that may be used in the future to overturn a decision.
Who wrote the dissenting opinion?
Judges who don't agree with the majority opinion usually author a dissenting opinion on their own or co-author it with their fellow dissenting judges.
How can a dissenting opinion influence judicial precedent?
Dissenting opinions do not set judicial precedents but can be used to overturn or limit rulings in the future.
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