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D, Dissent.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023


In the present context, “dissent” refers to disagreement by one or more justices with the outcome of a case and with the Supreme Court’s treatment of the parties involved. If the Court affirms the decision of a *lower federal court, for instance, a dissent disagrees with the decision to affirm. But a justice who dissents does not simply disapprove of the majority’s legal reasoning; that justice also disapproves of the treatment of the parties. The Supreme Court decides cases by majority rule, and the views of justices who disagree with the majority have no legal force. Nonetheless, dissent is a regular and important feature of the Court’s decisions.

Today, when a justice dissents, that justice will almost always write a dissenting opinion or join in a colleague’s dissenting opinion. (This was not always true in the past.) Such an opinion offers a rationale for disagreement with the outcome in the case. A dissenting opinion should be distinguished from a *concurring opinion, which agrees with the outcome but expresses a rationale for the outcome that differs in some way from that of the majority opinion.

The distinction between dissenting and concurring opinions is not universally accepted. Justice Antonin *Scalia (1994) observed in the Journal of Supreme Court History that an opinion that disagrees with the Court’s reasoning should be classified as a dissent even though the writing justice (p. 265) “happen[s] to reach the same disposition as the majority.” The justification for this approach, Justice Scalia has explained, is that Court opinions are important “for the reasons they give, not the results they announce” (p. 33).

Other complications may also arise. For example, a justice might disagree with the outcome of a case—but only in part. If the Court overturns the convictions of two criminal defendants, for instance, a dissenter might argue that only one of the convictions should have been reversed. An opinion reflecting partial disagreement usually is labeled “concurring in part and dissenting in part.” In this and other respects, however, the justices are not entirely consistent in their labeling of opinions.

Characteristics of Dissent.

Through dissent, a justice expresses and justifies disagreement with the Court’s decision. Supreme Court decisions involve important matters, and they are frequently the result of hard-fought battles among the justices. It is understandable, therefore, that justices would wish to make known their belief that the majority was wrong and the reasons for this belief. It is also understandable that many dissenting opinions express strong criticism of the Court’s decision and that a few even ridicule the decision. In *Zorach v. Clausen (1952), for example, Justice Robert H. *Jackson said, “Today’s judgment will be more interesting to students of psychology and of the judicial processes than to students of constitutional law” (p. 325). More recently, in *Romer v. Evans (1996), Justice Scalia accused the Court of “imposing upon all Americans the resolution favored by the elite class from which Members of this institution are selected” (p. 636).

A dissenting opinion is often the product of the battle itself. If a justice voted in the minority in the original conference discussion of a case, that justice may write an opinion to try to win colleagues over and thus obtain a majority; in most cases, that effort is unsuccessful. In another instance, a justice might be assigned the Court’s opinion but then be unable to retain a majority. In either case, an opinion that was written for another purpose can be adapted to become a dissenting opinion.

Functions of Dissent.

Dissenting opinions serve a variety of functions both within the Court and outside it. Sometimes the dissenter hopes to influence the outcome of the Court’s own decisions. While the Supreme Court generally adheres to its own *precedents, it is not rare—and has become increasingly common—for it to overturn precedents. It is even more common for the Court to modify precedents in deciding related issues. A dissenter can hope to exert sufficient persuasive force to influence the Court’s decisions in the future. It is usually difficult, however, to determine whether a shift in the Court’s position reflects influence from an earlier dissent. Justice Hugo *Black dissented against the Court’s holding in *Betts v. Brady (1942) that indigent state criminal defendants were not ordinarily entitled to a free attorney. Twenty-one years later he was able to write the Court’s opinion in *Gideon v. Wainwright (1963) reversing the Betts decision. But even here the reversal was probably due primarily to changes in the Court’s membership and in societal conditions rather than to the belated persuasiveness of Black’s 1942 opinion.

More commonly, as Justice Scalia has written, a dissenting opinion helps to improve the majority opinion. “Though the fact never comes to public light, the first draft of a dissent often causes the majority to refine its opinion, eliminating the more vulnerable assertions and narrowing the announced legal rule” (p. 41). Even the prospect of a dissent serves as an incentive to the authoring justice “to accept reasonable suggestions on major points” from other members of the Court (p. 41).

Dissenting opinions can have substantial impact outside the Court. By casting doubt on the Court’s decision, a dissenting justice may hope to influence the ways that lower courts respond to the decision. Alternatively, the dissenter may encourage Congress to take action to limit or overturn the decision (see reversals of court decisions by congress).

Justice Scalia has identified yet another function of dissenting opinions: they contribute significantly to the intellectual development of the law. As he has written, “the system of separate opinions has made the Supreme Court a central forum of current legal debate, and has transformed its reports from a mere record of reasoned judgments into something of a History of American Legal Philosophy with Commentary” (p. 40).

Prevalence of Dissent.

For most of the Supreme Court’s history, dissents were unusual. According to the data in Albert Blaustein and Roy Mersky’s The First One Hundred Justices (1978), the 1942 term was the first in which the justices wrote as many as one dissenting opinion per three decisions.

Today, dissenting votes and opinions are a routine part of the Court’s work. Generally, fewer than half of the Court’s decisions are unanimous. In recent terms, with only about eighty cases receiving plenary consideration, the number of dissenting opinions has generally ranged between fifty and sixty. Sometimes the dissenting justices join in a single opinion; sometimes there are multiple dissents.

There are several reasons for the change from earlier years. For one thing, the Court did not gain significant power to determine which cases it would hear until 1891, and it did not (p. 266) obtain its present nearly complete power over its agenda until 1925 (see judiciary act of 1925). These jurisdictional changes allowed the Court to cull out most of the “easy” cases brought to it—cases that would tend to produce unanimous decisions—and thus created the potential for higher rates of dissent. Today, the cases that the Court accepts generally involve difficult issues of constitutional or statutory interpretation. Justices who view the issues from different perspectives may well reach different conclusions.

The passage of time has also brought changes in the norms concerning dissent. Chief Justice John *Marshall (1803–1835), with his firm control over the Court, helped to create a tradition of suppressing disagreement in the interest of unanimity. That tradition remained strong as late as the first few decades of the twentieth century. Even those justices who were renowned for their dissents, such as Oliver Wendell *Holmes (1902–1932) and Louis D. *Brandeis (1915–1939), actually cast dissenting votes only occasionally.

A recent study by Robert Post (2001) illuminates the role of dissent under Chief Justice William Howard *Taft (1921–1930). Post shows that during the Taft Court, the unanimity rate for published opinions was much higher than the unanimity rate in conference votes immediately after oral argument. In case after case, justices acquiesced in silence notwithstanding their continued disagreement with the majority. Typical was a comment by Justice Brandeis: “I do not assent to your interpretation of the statute, but I ‘shut up.’” In a similar vein, Justice Edward T. *Sanford wrote, “Regret that I cannot agree, but do not expect to dissent.”

Modern practice is quite different. The justices generally feel that it is entirely appropriate to express openly their disagreements with Court decisions. The elevation of Justice Harlan Fiske *Stone to *chief justice in 1941 was the key factor in the change in Court norms concerning dissent, according to Thomas Walker, Lee Epstein, and William Dixon (1988). As an associate justice, Stone had chafed under the strong leadership of Chief Justice Charles Evans *Hughes (1930–1941), who gave a high priority to achieving unanimity. As chief, Stone was quite tolerant of dissent and himself dissented at a far higher rate than any previous chief justice. His colleagues responded by increasing their own propensities to dissent (and to write concurring opinions as well). The overall increase in dissent was dramatic; the ratio of dissenting opinions to decisions during Stone’s five terms as chief justice was about three times as high as it had been in the preceding five terms.

Although Stone’s tenure as chief was relatively brief, the acceptance of dissent that marked his leadership had a permanent effect. Rates of dissent remained very high by historical standards under his successor, Fred M. *Vinson (1946–1953), and since then have remained consistently far above the level that characterized the Court’s history before 1941.

Impact of Dissent.

The traditional norm limiting dissent reflected a belief that dissent could have undesirable effects, a belief that has not entirely disappeared. Most important, it is thought that departures from unanimity detract from the authority attached to decisions of the Court, and the practical impact of this lost authority might be to increase noncompliance with decisions. Even in an era of frequent dissent, at least some justices seem to share this view, and it can influence their behavior under special circumstances. Chief Justice Earl *Warren worked long and skillfully to achieve a unanimous decision in *Brown v. Board of Education (1954), largely because he shared with some of his colleagues the belief that division within the Court would encourage resistance to a decision that required desegregation of southern public schools. Chief Justice Warren E. *Burger gave up on his preferred view of executive privilege in order to assure a unanimous opinion in United States v. *Nixon (1974).

The belief that dissent encourages noncompliance is supported by the fact that critics of decisions frequently use dissents to buttress their positions. Moreover, it seems logical that disagreement within the Court detracts from the authority of a decision. But the impact of dissent on responses to the Court’s decisions has not been established empirically, in part because of the difficulty of measuring that impact. If dissent does affect responses, it seems likely that its impact is marginal; the policy preferences and self-interest of those who respond to decisions are probably far more powerful factors. It is worth recalling that the Court’s unanimity in Brown proved insufficient to prevent overwhelming noncompliance with that ruling in the Deep South, because southern officials had strong reasons to oppose desegregation.

Dissent also has positive consequences. Justice Scalia has said that “a system of separate writing improves the Court’s judges” because it puts the public spotlight on their individual positions. The legal views of the justices “are not submerged within an artificially unanimous opinion but are plainly disclosed to the world” (p. 42). From this perspective, dissent may actually increase public confidence in the Court as an instrument of reasoned decision making.

Yet even if dissent were somehow shown to have a negative effect on the Court’s impact, it is unlikely that the rate of dissent would decline. Frequent dissent and its justification in opinions have become well-established features of the Supreme Court, and the justices would find it (p. 267) very difficult to return to the earlier era in which dissent was exceptional.

See also opinions, assignment and writing of.

Maurice Kelman, “The Forked Path of Dissent,” in The Supreme Court Review 1985, edited by Philip B. Kurland, Gerhard Casper, and Dennis J. Hutchinson (1986), pp. 227–298. Robert Post, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” Minnesota Law Review 85 (2001): 1267–1390. Antonin Scalia, “The Dissenting Opinion,” Journal of Supreme Court History (1994), pp. 33–44. Thomas G. Walker, Lee Epstein, and William J. Dixon, “On the Mysterious Decline of Consensual Norms in the United States Supreme Court,” Journal of Politics 50 (1988): 361–389.

Lawrence Baum; revised by Arthur Hellman