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March 2, 2010 5:45 PM   Subscribe

What is the point of a dissenting opinion from the U.S. Supreme Court?

When the Supremes decide something, that's it--they're the highest court in the land. So why does the minority get to write a dissenting opinion in which they continue to argue the case? Does a dissenting opinion have any legal weight? If I'm arguing in front of a lower court judge, is there a benefit to quoting a dissenting opinion, since by definition the law holds the opposite of what the dissenter is arguing for?
posted by fatbird to Law & Government (18 answers total) 22 users marked this as a favorite
My understanding is that they hold some sway if, in the future, it's argued that the opinion should be overturned.
posted by Nattie at 5:55 PM on March 2, 2010 [1 favorite]

This is a great question.

The dissent records what those who did not agree with the majority were thinking and reasoning. It gives those not on the Court (pretty much everybody, and certainly all the people who aren't born at the time) a picture of what the debate was like behind the scenes, and thus a fuller view of the case. Today's dissent sometimes becomes tomorrow's majority opinion. Today's majority opinion is sometimes tomorrow's racist drivel (i.e. Dred Scott).

As far as legal weight, a dissenting opinion would not be controlling in court, I believe (I may be wrong). But oftentimes you'll see dissents from the past that have become almost majority opinions, because they represent the ideas and legal reasoning we're using now (i.e. Justice Holmes' dissent in Lochner). It's kind of a way of saying, "Well, they weren't all insane, someone was right then, even if no one recognized it."

Plus, a dissenting opinion is sometimes used if lawyers are looking to overturn the applicable majority opinion--but this would be more at the Supreme Court level than at the lower court level.
posted by sallybrown at 5:59 PM on March 2, 2010 [4 favorites]

It is true that dissenting opinions do not create precedent nor do they enter the case law. The main reasons are twofold:

1) The Supreme Court and other lower appeals courts sometimes revisit issues that they have ruled upon in the past. When they do this, the dissenting opinions of previous cases in which the issue was at hand are sometimes cited by counsels as persuasive authorities that the court can weigh in its current decision on the same issue.

2) The Supreme Court has one of the highest bully pulpits in the land and its decisions and dissents are read and discussed far outside the law libraries to which most decisions are relegated. As such, The Supreme Court not only has a powerful role in setting the legal agenda of the country, it also has a role in setting the discourse and tone of the policy agenda. Justices will often use the dissent as an opportunity to inform or comment upon the issue at hand as a means to guide or influence said policy debate.
posted by ChasFile at 6:00 PM on March 2, 2010 [1 favorite]

Nattie's got it - persuasive authority for future cases. Also, sometimes they want to explain that they are dissenting on procedural grounds, or dissenting because of part of the opinion, which can sometimes be important.

I always thought of it as a really interesting extra chance to read one of the justices' writing. Except Thomas. His are usually single-minded and boring.
posted by Pax at 6:01 PM on March 2, 2010

Well, imagine if the majority gave detailed reasons, and the minority just said, "We disagree." That wouldn't be very helpful. Disagree about what? How fundamental is the disagreement? How far does the jurisprudence have to evolve to get another shot at things? Dissenting opinions help to delineate the fault lines in jurisprudence, the areas that will one day be ripe for re-argument. They're also there to convince people - both now and in the future - of the judges' reasoning. Maybe some lower court will be convinced, and as a result will find some factual reason not to apply the Supreme Court's precedent to a case at hand. Maybe it will help move the national conversation forward. Or maybe it will just prove that the justices aren't idiots. These people are, generally speaking, quite bright, and would likely find it very unsatisfying not to explain their reasons.
posted by Dasein at 6:02 PM on March 2, 2010 [1 favorite]

Plessy v. Ferguson has a very famous dissent by Justice Harlan.
posted by Pax at 6:07 PM on March 2, 2010

Does a dissenting opinion have any legal weight?

"Legal weight" is very vague. It's not legally binding; it's not the law. It's not "binding authority." But if someone is arguing before the Supreme Court that it should overrule its own precedent, the dissent could be "persuasive authority" -- or just a convincing argument (which isn't the same thing as persuasive authority).

And this is very important: it informs the world: "I, Justice ____ of the Supreme Court, take this position." A very clear example was when Justices Marshall and Brennan (back when they were on the Court) wrote a separate opinion (generally if not always a dissent) in every one of the Court's death penalty cases simply stating that the death penalty is unconstitutional. Since the personnel of the Court changes, and judges can conceivably change their minds, there's always at least a theoretical possibility that the dissenting position could gain votes to become a majority position (meaning it would become the law, if the Court hears a case where that majority position affects the outcome). If Kennedy (the most frequent swing voter right now) were to retire and be replaced with a new Justice, naturally that new Justice when hearing a new case would make sure to have his/her clerks research any relevant dissents from old cases to see if there's potential for the law to shift in the dissent's favor. (I mean, that'd be true no matter which Justice had retired, but especially Kennedy since he often made the difference in a 5-4 vote).

A dissent is also free to talk about whatever it wants, so it can bring up not just the facts of the case but also related hypotheticals and broader points, which can be useful to lots of people including lawyers. When the Supreme Court interprets a statute based on looking at the "legislative history," and Justice Scalia dissents saying the Court shouldn't look at legislative history (which is what he believes), lawyers are going to read it. If those lawyers are arguing a future case before the Supreme Court, they're going to be careful about making arguments based on legislative history because they'll know at least one Justice will be annoyed and would prefer to hear an alternative argument.

If I'm arguing in front of a lower court judge, is there a benefit to quoting a dissenting opinion, since by definition the law holds the opposite of what the dissenter is arguing for?

I'd say it's the opposite of a benefit. If you're arguing before a lower-court judge (I assume this is purely hypothetical since you're even asking), and you say, "Well, Justice Stevens said in his dissent in Smith v. Jones..." that's like saying "What Justice Stevens said in Smith v. Jones is definitely NOT the law that was set forth in Smith v. Jones!" So, if Stevens's point supports yours, you'd be shooting yourself in the foot, especially considering that lower courts are bound by what the Supreme Court has held, whether the lower-court judges like it or not. They have absolutely no power to say, "Well, I prefer what Stevens said, so I'm going to go with his approach instead."
posted by Jaltcoh at 6:16 PM on March 2, 2010

Oh, and following Pax's lead in pointing to a great dissent, both of the dissents (John Marshall Harlan and Oliver Wendell Holmes) in the Court's infamous 1905 decision in Lochner v. NY were certainly worth the dissenting judges' time, and that's an understatement. They're still worth reading over a hundred years later. (I particularly love Holmes's.) Lochner has been overruled since the '30s; the dissents have been vindicated. I mentioned more practical concerns in my previous comment, but the historical and intellectual value of these dissents is hard to overstate.
posted by Jaltcoh at 6:27 PM on March 2, 2010

A more immediate example for us 21st-century folk: Bush v. Gore. 4 separate dissenting opinions. Justice Stevens wrote:

"Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law."

Now, that was worth writing, wasn't it?
posted by Jaltcoh at 6:31 PM on March 2, 2010 [4 favorites]

My answer is it provides the context in which a case was argued and ultimately decided. A lot of times, judicial context (a la legislative intent) is the best source for what a law or decision really was "trying" to say.

Take the (in)famous example: a local ordinance saying "No vehicles allowed in the park."

Let's say I'm representing Johnny in front of the 12th circuit. Johnny rode his Big Wheel in the park and got a ticket from the local police. They say Johnny's Big Wheel is a vehicle and is therefore not allowed in the park. (It moves Johnny around. It has a propulsion system. It has wheels and a steering mechanism and it powers him faster than walking. It could run over someone's toe. Etc.)

It just so happens that the Supreme Court heard a case five years ago related to this local ordinance and held it to be constitutional. And the major points of contention between the majority and minority opinions were about cars. The minority argued the ordinance was unconstitutional because of the right to bear cars, etc etc. Whatever.

I can point to the minority opinion and say "look, the caselaw here clearly shows that the statute is aimed at controlling the flow of CARS in the park. While Johnny's Big Wheel might fall under the literal definition of 'vehicle,' clearly for the purpose of this statute and the caselaw surrounding it, 'vehicle' = CAR, or at least motorized automotive transport. Johnny's tricycle is outside the scope."

And of course all the other reasons stated above ;)
posted by jckll at 6:32 PM on March 2, 2010

In addition to the excellent points above, it is a subtly form of judicial advocacy. Swaying the opinions of the the young lawyers (and future judges and Justices) out there. That's not a value judgment- some decisions of the higher courts may well be impartially decided, and still end up wrong on the law. The dissenting opinion may contain the path toward a future rectification of that mistake.

And I think it is an important piece of maintaining the sanctity of the Court. People can see the reasoning that went into a decision, and (hopefully) understand that the court isn't just "voting" for their favorites.

And yes, it does give Scalia something to do with his time. (And every Court needs a Scalia- every now and then he ends up being right in spite of himself.)

Tangentially, isn't it amazing/disheartening to see headlines that read "Supreme Court Strikes Down [Something]!!!" And yet when you read the actual decision, it has NOTHING to do with that [something] and was really all about some dude filling out the wrong form.
posted by gjc at 7:13 PM on March 2, 2010

At the Supreme Court level, it helps lawyers understand the philosophies of the individual Justices. As Jaltcoh notes, new appointments can shift the balance of power on the Court, making this a highly relevant inquiry. I'm sure, for example, that the attorneys who argued Citizens United read carefully Justice Kennedy's dissent in Austin twenty years prior.
posted by ewiar at 7:48 PM on March 2, 2010

Dissent is not a point; it is an encompassing principle which informs the constitution of the US
posted by Neiltupper at 10:02 PM on March 2, 2010

The existence of concurring and dissenting opinions, often on very small points of law, also make it much more noticeable when the Court is unanimous, as it was in many of the 1950s and 1960s Supreme Court cases.

Part of the majesty of Brown v. Board of Education is that one opinion speaks for all nine justices. In major cases which interpret the Constitution, that's exceedingly rare.
posted by j1950 at 10:51 PM on March 2, 2010 [1 favorite]

Dissenting opinions give attorneys trying to change or limit the reach of the law something to hold on to. If attorneys argue persuasively, they can prompt a lower or appellate court to note that while the court is bound by the majority opinion, the Supreme Court should revisit the issue in light of changed circumstances or problems in the application of the law. If enough judges call for the Court to revisit the issue to clarify or limit or overrule a prior decision, the justices pay attention.

A really good example of this is the 10th Circuit's decision regarding the federal statute prohibiting the possession of body armor, United States v. Patton, which relied on dissents from Justice Breyer in the lead cases on the Commerce Clause to distinguish body armor from other permissible subjects of congressional regulation (see page 27). The Patton opinion even relies on a dissent from a court of appeals in support of revisiting the constitutionality of federal statutes prohibiting gun possession by felons on page 39. The court concludes that the body armor statute is constitutional because the court is bound by its precedent and a related decision about gun possession in the Supreme Court, but ends this way, which summarizes the value of dissents: "We suspect the Supreme Court will revisit this issue in an appropriate case—maybe even this one."
posted by *s at 8:11 AM on March 3, 2010

If you want to delve further into this topic, you might want to look at this whole book of Scalia dissents. It's not of interest only to his admirers: whether you agree with him or not, his dissents bring a distinctively acerbic and lively approach to constitutional debates, and they're just fun to read (sometimes). (I assume the book gives a readable background on each case and also explains the majority's position.)

Here's one more thing I don't think anyone mentioned. Judges aren't just computers that have been rationally programmed to achieve a limited set of tasks. They're human beings like you and me. They want things that people of all walks of life want: respect ... recognition ... prestige ... immortality ... self-expression ... ego-boosting ... feeling empowered even when not actually exercising power.
posted by Jaltcoh at 10:23 AM on March 3, 2010

Also, the majority doesn't always all agree for the same reason -- you can have five DIFFERENT assents in deciding A v. B goes in favor of A. This means that while it's clear that A won, it's not clear why A won, and future case C v. D where C and D are in similar (but not quite the same) positions to A and B, the dissenting opinion from A v. B, where let us say we had five different opinions in the majority favoring A, and only ONE opinion in the minority for B (with all four justices in the minority signing on), D may actually be in the stronger position when C and D argue before the court, as D will have one strong legal theory already supported by 4 of the justices, while C is picking from among five theories each supported by one justice.

Planned Parenthood v. Casey is one such "plurality" case; Griswold v. Connecticut also has concurring opinions supporting the right to privacy on different grounds than the majority opinion.

I'm sorry, I feel like I explained this badly, but court cases aren't simple majority wins; it's the legal reasoning behind the decision that makes the law, and you could, conceivably, have nine different reasons with each of the nine justices putting forth a different legal rationale. That leaves the law unclear, even if all nine voted the same way, and leaves room for further litigation on those issues until the law clarifies. It's also why dissents matter, presenting alternate legal theories.
posted by Eyebrows McGee at 12:37 PM on March 3, 2010 [1 favorite]

There's a great story in today's New York Times about dissents.
posted by Toekneesan at 11:42 AM on March 8, 2010

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