dissenting opinion

When one or more judges on a panel disagree with a decision made by the majority in a court ruling, they can file an official disagreement known as a dissenting opinion.

In the United States and other jurisdictions, courts that decide appeals to the decisions of lower courts are called appellate courts (in the U.S., the Supreme Court is the top appellate court). In such courts, rulings are made by a panel of judges, with a majority vote deciding each case. Any judge who doesn’t vote with the majority can file a dissenting opinion (or simply dissent) explaining why they disagree.

In a general sense, a dissenting opinion is simply an opinion that does not agree with others—especially one that goes against a mainstream opinion. But the term is most often used in its specific legal sense. Dissenting opinions are part of the legal tradition in many countries, including the U.S., the U.K., Canada, and Ireland. Dissenting opinions are very often discussed in relation to the U.S. Supreme Court, since such opinions can have a significant impact on future court rulings.

The infamous 1896 court case Plessy v. Ferguson is often regarded as one of the most prominent and yet flawed court cases in American history. In the case, the Supreme Court determined that “separate but equal” treatment of people of different races was allowed by the U.S. Constitution. Worse yet, this upholding of segregation was a landslide 7-to-1 decision.

The lone vote against maintaining the legality of institutional racism was Justice John Marshall Harlan. In his dissenting opinion, he wrote: “Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Harlan’s dissent contributed to the eventual overturning of the “separate but equal” ruling 58 years later in another landmark case—Brown v. Board of Education (1954).

Dissenting opinions like Harlan’s are considered important because they put an alternative interpretation of the case on the record, which can encourage future discussion of the case. Such dissent may be used years later to shape arguments or opinions.

Dissenting opinions don’t always lead to the overturning of cases. But they at least allow the reasoning behind judges’ votes to be recorded and seen by the public. Along with the majority opinion and the dissenting opinion, another type of opinion is sometimes filed: a concurring opinion. A concurring opinion agrees with the prevailing opinion but bases its conclusion on different reasons or on a different view of the case.

During his tenure on the Supreme Court from 1804 to 1834, Justice William Johnson Jr. gained a reputation for being a frequent dissenter—he issued more than 30 dissenting opinions during that time!

From the lunchroom to the courtroom, dissenting opinions are a part of life, so it’s no wonder they’ve become an official part of the legal process.

4 charts explaining the dissenting opinion in the SCOTUS death-penalty ruling http://t.co/LXgWxFkkB2 pic.twitter.com/pVEZqcTzR4

— Bloomberg (@business) July 3, 2015

A dissenting opinion is not a personal attack, and it will not affect the quality of your life . Respect people’s opinion 💯

— TEEMARKFOODS (@IbeneroT) December 12, 2019

 

 

• appellate
• dissent
• concurring opinion
• majority
• constitutional

True or false?

Every U.S. Supreme Court decision has a dissenting opinion.