One or more justices often disagree with the majority of the Supreme Court on how to decide a case. Justices who disagree with the majority are dissenters. They interpret the law, as it applies to a case, in a way that differs from the majority's interpretation. A dissenting opinion is different from the concurring opinion, which agrees with the Court's decision but provides an explanation that differs from the majority opinion.
A justice who disagrees with the verdict in a case usually writes a dissenting opinion, though there is no requirement that a dissent be accompanied by an opinion. However, most dissenting justices do write one to explain why they disagree with the majority decision. For example, in Plessy v. Ferguson (1896), the Court let stand a state law requiring trains to provide “separate but equal” facilities for black and white passengers. Justice John Marshall Harlan wrote a dissenting opinion in which he said that “the Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
A dissenting opinion is not an attempt to change the minds of the Court's majority because the Court has already reached a final decision before the dissenting opinion is written. Rather, the dissenter hopes to arouse public opinion against the majority opinion.
Ultimately, the dissenting judge hopes that the Court will reconsider the majority opinion and overrule it and that his opinion will someday become the basis for a majority opinion in a similar case. Chief Justice Charles Evans Hughes wrote: “A dissent in a court of last resort 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.”
For example, Justice Harlan's 1896 dissent in Plessy was vindicated by the majority opinion in Brown v. Board of Education (1954), in which the Court unanimously rejected the “separate but equal” doctrine and ruled that racially segregated public schools were inherently unequal. Similarly, Justice Hugo Black's dissenting opinion in Betts v. Brady (1942), in which he wrote that criminal defendants in state courts have the right to counsel, became the majority opinion in Gideon v. Wainwright (1963).
Over the course of history, however, dissenting opinions have rarely been incorporated into later decisions. Justice Oliver Wendell Holmes, who was known as the Great Dissenter, wrote 173 dissenting opinions during 30 years on the Supreme Court. Yet few of Holmes's dissenting opinions sparked reversals of court decisions.
The Supreme Court does not readily admit errors and overrule past decisions. The principle of stare decisis (“Let the decision stand”) has a powerful influence on the Court. Justices usually accept precedents established in earlier Court decisions as guides in deciding later cases.
See also Concurring opinion; Opinions of the Supreme Court; Precedents, judicial
Sources
- Alan Barth, Prophets With Honor: Great Dissents and Great Dissenters on the Supreme Court (New York: Random House, 1974)
