dissent

intr.v., -sent·ed, -sent·ing, -sents.

1. To differ in opinion or feeling; disagree.
2. To withhold assent or approval.

n.

1. Difference of opinion or feeling; disagreement.
2. The refusal to conform to the authority or doctrine of an established church; nonconformity.
3. Law. A justice's refusal to concur with the opinion of a majority, as on a higher court. Also called dissenting opinion.

[Middle English dissenten, from Latin dissentīre : dis-, dis- + sentīre, to feel.]

dissentingly dis·sent'ing·ly adv.

verb

To be of different opinion: differ, disaccord, disagree, discord, vary. Idioms: jointakeissue. See agree/disagree.

noun

A state of disagreement and disharmony: clash, conflict, confrontation, contention, difference, difficulty, disaccord, discord, discordance, dissension, dissentience, dissidence, dissonance, faction, friction, inharmony, schism, strife, variance, war, warfare. See conflict/cooperation.

n

Definition: disagreement, disapproval
Antonyms: agreement, approval, authorization, concurrence, endorsement, ratification, sanction

v

Definition: disagree
Antonyms: agree, approve, assent, authorize, concur, consent, endorse, ratify, sanction

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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 “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 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 very difficult to return to the earlier era in which dissent was exceptional.

See also Opinions, Assignment and Writing of.

Bibliography

• 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

Dissent (nonconformity). Though dissenting sects could trace some of their doctrines to well before the Reformation, for example to the lollards, pre-Reformation heterodoxy is usually termed schism or heresy. The term dissent is reserved for those who did not conform to the Church of England and, though this included catholics, it is usually confined to protestant groups.

The seed time for nonconformity was the Civil War. The confused situation gave dissenting sects the opportunity to establish themselves. The independents or congregationalists dissented from the dissenters, disliking the rigour of presbyterian rule and demanding toleration; the baptists split between the general baptists and the particular baptists, who were closer to Calvinism; George Fox founded the ‘Children of Light’, later known as quakers; Thomas Harrison looked for the imminent establishment of Christ's Fifth Monarchy and the triumph of the saints.

In the declaration of Breda April 1660) Charles II offered ‘a liberty to tender consciences’ in religious matters. But the Cavalier Parliament, elected in March 1661 to replace the Convention, was much less inclined to forgive and forget, and a new Act of Uniformity (1662) led to some 2, 000 puritan clergy leaving their livings. The ‘Clarendon code’ waged war against the nonconformists, and the Test Act of 1673 barred dissenters, protestant and catholic, from public office, including membership of Parliament. The reigns of Charles II and James II were difficult for the dissenters, fierce bursts of persecution alternating with efforts to woo them. At the crisis of 1688, the majority of protestant dissenters heeded the warning from Halifax that ‘you are to be hugged now only that you may be the better squeezed at another time’.

After the Glorious Revolution, the Toleration Act of 1689 granted freedom of worship, provided that dissenters took a simple oath of allegiance. At the same time a new schism arose when 400 Anglican clergy decided that they could not swear to the new regime and formed the non-juring church. The acceptance after 1688 of an avowedly presbyterian church order in Scotland, confirmed by the Act of Union in 1707, was proof that the Church of England no longer had an official monopoly in the British Isles.

Under these comparatively relaxed conditions, the dissenting groups might have been expected to flourish. In practice toleration proved more damaging than persecution. Some of the more prosperous dissenters conformed for social or political reasons, but the dissenters also suffered from internal convulsions. The development of the methodist movement from the 1730s onwards led to a vast increase in dissent, though during Wesley's lifetime his followers remained in the Anglican church. By the 1770s the dissenters had arrested their decline and were growing more confident, fortified by the success of nonconformity in America. This led many of them to oppose the American war, bringing them renewed unpopularity. The support of many dissenters for the French Revolution in its early stages kindled fresh bitterness and Priestley's house in Birmingham was burned in 1791 in church and king riots. In 1828, the long wars safely over, repeal of the Test and Corporation Acts went through with surprising ease. Though nonconformists retained substantial grievances, especially over marriage and tithes, they had at least achieved formal civil equality.

It transpired that they had achieved a good deal more. The early years of the 19th cent. witnessed a remarkable upsurge in support for dissent. The methodists pointed the way to other sects. At the time of Wesley's death in 1791 they numbered some 56, 000: by 1836 there were 360, 000 in the different methodist churches. Congregationalist membership increased from some 20, 000 in 1760 to 127, 000 by 1838, baptists from 11, 000 to 100, 000.

The effect of these changes was a transformation of the religious scene recorded by the religious census of 1851. First the census showed that nearly 40 per cent of those eligible to have attended church on 30 March had not done so. Secondly, it revealed that Anglican attenders scarcely outnumbered the dissenting sects—3, 773, 000 against 3, 487, 000, of whom methodists were 1, 463, 000, independents 793, 000, baptists 587, 000, catholics 305, 000, unitarians 37, 000, and quakers 18, 000. Dissenters were in a comfortable majority in many northern towns like Sheffield, Leeds, and Bradford, and formed a great majority in Wales.

Anglicans braced themselves for another attack on the established position of the church. Tithes went in 1868; the Irish church was disestablished in 1869; the Welsh church in 1920. But the Church of England held out until the tide of religious belief was clearly ebbing. Meanwhile the influence of dissent was all-pervasive. The Municipal Corporations Act of 1835, which set up elected councils in the large towns, had brought hundreds of dissenters into local government. The nonconformist conscience was a powerful political force, as Charles Dilke and Parnell discovered. The influence of dissent may be seen most clearly in the Liberal Party. Bright and W.E. Forster were quakers, Joseph Chamberlain a unitarian, Asquith from a congregationalist family, Lloyd George from a baptist home. The Parliament of 1905, which gave the Liberals their biggest majority ever, contained over 180 protestant dissenters. But both dissent and the Liberal Party were poised for eclipse. The removal of many of their grievances by the Liberals persuaded some dissenters to move to the political right, while the new Labour Party offered alternative accommodation to those who remained radical.

Dissent itself was also in decline. From 1918 onwards there was a marked falling-off in membership of both the Church of England and the dissenting denominations. There was increasing difficulty in recruiting clergy. The Church of England had 20, 000 clerics in 1900, 10, 000 by 1984; the methodists, with 4, 700 ministers in 1950, had 2, 500 by 1993. The churches responded in a variety of ways—by merging parishes, by abandoning unwanted churches, by institutional amalgamations, and by ordaining women ministers and priests. Though religious issues still surfaced in public life, politics, except in Northern Ireland, was largely secularized.

This entry contains information applicable to United States law only.

An explicit disagreement by one or more judges with the decision of the majority on a case before them.

A dissent is often accompanied by a written dissenting opinion, and the terms dissent and dissenting opinion are used interchangeably.

Dissents have several functions. In some cases, they are a simple declaration of disagreement with the majority. In others, they instruct, prod, scold, or otherwise urge the majority to consider the dissenter's point of view.

Dissents carry no precedential weight and are not relied on as authority in subsequent cases. However, attorneys and judges sometimes consult them to understand the dissenter's analysis of the majority opinion. Attorneys and judges may also cite a dissent if they agree with its reasoning and conclusion and seek support for a change in the law.

Although the majority opinion constitutes the judgment of the court, its legal weight can be diminished if a sufficient number of judges dissent. On issues that divide the courts and the country, there can be sharply divergent opinions on what the law is or should be. During the 1990s, for example, one divisive question before the U.S. Supreme Court was whether affirmative action programs to redress the effects of past discrimination were constitutional. In Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995), the U.S. Supreme Court held that Georgia's congressional redistricting plan, implemented to give minorities a strong voting block, constituted racial gerrymandering and violated the Equal Protection Clause. However, the case was not an unqualified success for those urging the rejection of affirmative action. Five justices joined in the majority block (plurality) in the case, and four justices filed dissents. With such a large minority, the dissents gained significance. Legal analysts monitor close cases such as Miller because a shift by one justice would signal a change in the law.

Dissents are a relatively recent phenomenon. Chief Justice John Marshall, who served on the Supreme Court from 1801 to 1835, urged unanimity on the Court to demonstrate that its opinions were the last word on an issue. Others believed that individual conscience should dictate a justice's opinions, without regard to unanimity. In its early years, most of the Supreme Court's decisions showed little or no dissent. During the late 19th century and early 20th century, as the Court became firmly established as the law of the land, more dissents appeared. Yet, even those who dissented during this period often recognized the importance of consensus opinions. For instance, Justice Oliver Wendell Holmes, Jr., a frequent and famous dissenter, wrote a scathing dissent in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), but not before he expressed his reluctance to do so: "I regret sincerely that I am unable to agree with the judgment in this case, and that I think it is my duty to express my dissent" (Lochner).

By the 1960s and 1970s, dissents were an accepted part of the Court's business, perhaps reflecting the fractious political and social climate of those years. One frequent dissenter during the mid-twentieth century was Justice William O. Douglas. During his thirty-six years on the Court, from 1939 to 1975, Douglas wrote 524 opinions of the Court, 154 concurring opinions, and an astounding 486 dissenting opinions. In addition, he dissented without opinion in 309 cases.

Justice Benjamin N. Cardozo, of the Supreme Court, defended those who disagree with the majority, writing that the dissenter is "the gladiator making a last stand against the lions." A few justices raised their roles as dissenters to an art form. Justices William J. Brennan, Jr., and Thurgood Marshall displayed particular courage in opposition to the majority. During their long tenure on the Court, Brennan and Marshall were unwavering in their conviction that the death penalty violates the Constitution. By doggedly and relentlessly repeating their dissent, they sought to win others to their view that the law on capital punishment should be changed.

Together as well as separately, Brennan and Marshall wrote scores of dissents in death penalty cases. In so doing, they opposed clear precedent that supported the legality of capital punishment. However, both were convinced that they were justified in their continued opposition. Brennan felt that the intrinsic morality of the Eighth Amendment superseded any right of individual states to impose capital punishment. He wrote, "It would effectively write the (Cruel and Unusual Punishment) [C]lause out of the Bill of Rights were we to permit legislatures to police themselves by having the last word on the scope of the protection that the clause is intended to secure against their own overreaching." Marshall's opposition was less philosophical and more practical. He repeatedly pointed out that the application of the death penalty was arbitrary and unfair, and affected minorities disproportionately. He felt a responsibility to continue bringing this issue before the public and believed that most people, if sufficiently informed about all its ramifications, would find capital punishment "shocking, unjust, and unacceptable" (Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972] [Marshall, J., dissenting]).

Some legal analysts believe that dissents are an important part of the system of checks and balances. Justice Charles E. Hughes — who served on the Court from 1910 to 1916, left the bench to run for president, and then returned to the Court as chief justice from 1930 to 1941 — wrote, "A dissent … is an appeal to the brooding spirit of the law, 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."

See: court opinion.

IN BRIEF: n. - The act of protesting; A difference of opinion; (law) the difference of one judge's opinion from that of the majority v. - Withhold assent; Be of different opinions; Express opposition through action or words.

Tutor's tip: A "decent" (respectable, honest) person with a "descent" (lineage or ancestry) from a good family will "dissent" (disagree) from mob rule, for fear the situation will "descend" (to move to a lower place) into chaos.

Quotes:

"The original crime of niggers and lesbians is that they prefer themselves." - Alice Walker

"The rule is perfect: in all matters of opinion our adversaries are insane." - Mark Twain

"Discussion in America means dissent." - James Thurber

"To shoot a man because one disagrees with his interpretation of Darwin or Hegel is a sinister tribute to the supremacy of ideas in human affairs -- but a tribute nevertheless." - George Steiner

"If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind." - John Stuart Mill

"The dissenter is every human being at those moments of his life when he resigns momentarily from the herd and thinks for himself." - Archibald Macleish

See more famous quotes about Dissent

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Dansk (Danish)
v. intr. - udtrykke uenighed, afvige fra, dissentiere
n. - uenighed, meningsforskel, dissens

Nederlands (Dutch)
afwijken, afwijkende mening hebben, niet instemmen, afwijkende mening

Français (French)
v. intr. - différer d'opinion (de qn), (Relig) être en dissidence, (US, Jur) diverger (sur des questions de fond)
n. - dissentiment, différence d'opinion, (Relig) dissidence

Deutsch (German)
v. - abweichen, differieren, nicht zustimmen
n. - Meinungsverschiedenheit, abweichende Meinung

Ελληνική (Greek)
v. - διαφωνώ, αφίσταμαι, αντιτίθεμαι, διίσταμαι
n. - διάσταση, διαφωνία, διχόνοια, σχίσμα

Italiano (Italian)
dissentire

Português (Portuguese)
v. - discordar
n. - desacordo (m)

Русский (Russian)
не соглашаться, отрицать догматы

Español (Spanish)
v. intr. - disentir
n. - disensión

Svenska (Swedish)
v. - ha en annan mening, gå ur statskyrkan
n. - avvikelse i åsikter

中文（简体）(Chinese (Simplified))
持异议, 不同意, 异议

中文（繁體）(Chinese (Traditional))
v. intr. - 持異議, 不同意
n. - 異議

한국어 (Korean)
v. intr. - 이견을 말하다
n. - 찬성하지 않음

日本語 (Japanese)
n. - 意見の相違, 異議, 非国教主義
v. - 意見を異にする

العربيه (Arabic)
‏(فعل) يعارض, ينشق عن ( مذهب ديني أو سياسي) (الاسم) انشقاق, معارضه‏

עברית (Hebrew)
v. intr. - ‮חלק על, לא הסכים‬
n. - ‮אי-הסכמה, התנגדות‬

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