When the U.S. Supreme Court hands down a decision, you might hear that the nine justices ruled 6-3 or 5-4. You may also hear that a particular judge wrote a concurring opinion, or that there were multiple dissenting opinions.
These concurrences and dissents occur when Supreme Court justices express their disagreement with a majority opinion.
Consider the recent case of Arizona v. Navajo Nation, which looked at the Navajo Nation's water rights on the Colorado River. The Court ruled 5-4 in favor of Arizona, meaning five justices agreed with Arizona and four with the Navajo Nation.
The opinion issued by the five justices is a precedent-setting decision for other courts and is called the “majority opinion” or simply “opinion.”
The opinion issued by the other four justices is called a “dissenting opinion” or simply a “dissenting opinion.” Just as a majority opinion outlines its reasons and how it reached its conclusion, a dissenting opinion does the same. Lower courts must follow the majority opinion, but they are not required to follow a dissenting opinion.
Why file a dissent if the Court is not required to follow it? Dissents have a role and purpose, even if they are not formal guidelines for the Court's decisions.
There are many documents being exchanged in the US Supreme Court, including opinions, concurring opinions, and dissenting opinions. pablohart/E+/Getty Images
For the record
Justices write dissenting opinions for the sake of history, for personal reputation, or as a matter of principle: they want to put on record why they believe the majority decision is wrong.
In the case of a dissenting opinion, the justices can step through the majority opinion and highlight what they see as errors in the logic, interpretation, or precedent of the case. This judgment is the court's official response to the question it is asked to decide.
An example of this step-by-step approach can be seen in the record in Dobbs v. Jackson Women's Health, a case that overturned federal protections for the right to abortion. In that case, the dissenter wrote a detailed response to the majority opinion.
develop a legal argument
Dissenting opinions also serve to help other justices articulate their arguments.
Before the court issues a decision, the justices meet in person to discuss their views and preliminary decisions about the outcome of the case.
Based on that conference, the justices have an idea of what the majority opinion will be and who will agree with it. He then appoints one judge, the chief justice, or most senior judge, to draft the majority opinion. The same process is used when he assigns one judge to draft a dissenting opinion.
These draft opinions are then circulated to all justices, who provide comments and feedback on points they think are important to incorporate. This review process helps the justices decide whether to concur with the opinion or write their own opinion if they feel a particular point needs to be addressed.
The value of this process is to refine the arguments in your opinion. The late Justice Ruth Bader Ginsburg said in her 2009 speech, “There's nothing like an impressive dissenting opinion to help the majority opinion's authors refine and clarify their original points.” .
Objection as a guideline
In some cases, the grounds of dissent may be used to adjust future legislation. It could serve as guidance to lawmakers and serve as the basis for future lawsuits aimed at ultimately overturning this first lawsuit.
In 1896, in the case Plessy v. Ferguson, which challenged Louisiana's racial segregation laws, the U.S. Supreme Court ruled that racial segregation was lawful so long as separate but equal facilities and services were available.
The case contained only one dissenting opinion, by Justice John Marshall Harlan, who argued that racial segregation was unconstitutional.[t]Arbitrary segregation of citizens on the basis of race on public streets is a hallmark of slavery that is completely inconsistent with our constitutional civil liberties and equality before the law. It cannot be justified on any legal basis. ”
Harlan's dissent formed the basis of arguments that the Court ultimately accepted 60 years later in Brown v. Board of Education, overturning Plessy and declaring racial segregation unconstitutional.
Although Mr. Harlan was not explicitly mentioned in the Brown decision, the logic and arguments he presented in the Plessy dissent became the basis for subsequent cases that tested the limits of “separate but equal,” and ultimately The court ended up overturning that principle in the Brown decision.
Dissenting opinions are not limited to one opinion, meaning that in a 5-4 decision there could theoretically be four separate dissenting opinions.
What about consent?
Justice John Marshall Harlan of the Supreme Court wrote the only dissenting opinion in the 1898 ruling that racial discrimination was legal. Harlan's opposition laid the groundwork for the court to declare racial discrimination unconstitutional. Bettman/Getty Images
At least five justices must agree with and sign the majority decision. The simplest outcome is for all five justices to agree on one opinion.
However, the majority justices may still disagree with the statement of the majority opinion. For example, the justices may write an additional opinion clarifying the extent of their agreement with the majority's decision. Alternatively, the justices may agree with the majority's decision but disagree with its reasons and choose to write a separate opinion.
Individual opinions by those who agree with this majority decision are called “concurring opinions.” They serve a similar purpose to dissenting opinions by recording a judge's thinking on an issue, which can then be used in similar cases in the future.
Concordance can make the math tricky. In a case about water on the Navajo Reservation, four justices signed the majority opinion and a fifth wrote a concurring opinion. So the four justices in the majority plus one who wrote a concurring opinion means five justices concurred with the opinion.
Additionally, majority justices can sign the majority opinion as well as the concurring opinion.
In Griswold v. Connecticut, a 1965 right-of-privacy case, seven justices agreed that the right of privacy is constitutional but disagreed about where that right is based. Five justices signed the majority opinion; three of them also signed a separate concurring opinion. The other two justices did not sign the majority opinion, instead writing separate opinions in which they agreed with the majority's conclusions but did not join the majority opinion.
That's a total of four opinions that agree there is a constitutional right to privacy, but don't agree on where that right fits in the Constitution.
How should lower courts respond to decisions like Griswold? Lower courts must still follow the majority opinion, but they can choose to incorporate the rationale of the concurring opinion.
legal conversation
The concurring and dissenting opinions are a dialogue with the majority opinion on the legal issues of the case. So the next time you hear about arguments for or against, pay attention.
At least you can see how a particular judge views the issue. Additionally, it may provide clues as to where the law is headed in the future.
