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 gerry-mandering 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 nineteenth century and early twentieth 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. "
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] clause 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  [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."
Mello, Michael. 1995."Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment." Florida State University Law Review 22 (winter).
At a meeting hosted by the Penn Law chapter of the Federalist Society on Wednesday, October 11, 2017, Penn Law Professor Amy Wax delivered a talk on the suppression of divergent opinions at Penn Law and how she believes dissent and disagreement ought to work in the academy. Wax’s talk runs roughly 42 minutes, with a half hour of Q&A:
Wax is a member of Heterodox Academy. In August, Wax and law professor Larry Alexander wrote an op-ed on “bourgeois culture” that challenged some widely held views and that triggered a reaction and a controversy. You can read our coverage of that controversy here, including links to the open letter signed by 33 of her colleagues that “categorically rejected” Wax’s claims, along with Jon Haidt’s defense of Wax and critique of open letters of condemnation in general. You can also read two additional posts here at Heterodox academy: a piece written by Professor and HxA member Jonathan Klick, one of Wax’s colleagues at the Penn Law School who had signed the open letter against Wax, as well as an essay by Professor Jonah Gehlbach, who was the initiator of the Open Letter, in which he responded to the specific contents of the Wax/Alexander op-ed, and defended the use of open letters.
In the video, Wax opens her talk by describing the nature of a university as a truth-seeking entity. She says “Universities are not politics, they are not religion, universities need a variety of views. There should be no orthodoxy immune from challenge in academia.” Without the confrontation of opposing views– that she says should be presented with “logic, evidence, facts and substantive arguments”– Wax argues, students are absolved of engagement with ideas they find confusing, challenging or even controversial. “You don’t need protection, you need exposure.”
She provides advice and encouragement for those who want to challenge ideas, saying to “be cautious in dissent…When you comment, don’t name call, slur, libel or vilify…remember the positive role model. Embrace the dignified, reasoned language of evidence, justification argument, [and] the modes of civil discourse… Operating in the marketplace of ideas is hard work. It requires patience and restraint; investigation and effort. …Operating in that marketplace means sometimes being offended, upset, bruised or even outraged. Democracy and debate– robust and wide open– are not for the faint of heart.”
We encourage you to watch the entire video (the talk is also available as an audio-only file).
Opinions expressed are those of the author(s). Publication does not imply endorsement by Heterodox Academy or any of its members. We welcome your comments below. Feel free to challenge and disagree, but please try to model the sort of respectful and constructive criticism that makes viewpoint diversity most valuable. Comments that include obscenity or aggression are likely to be deleted.
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