The Purpose of Dissenting Opinions

Definition and Examples

Official Supreme Court Portrait of Ruth Bader Ginsburg
Official Supreme Court Portrait of Ruth Bader Ginsburg. Public Domain

A dissenting opinion is an opinion written by a justice who disagrees with the majority opinion. In the US Supreme Court, any justice can write a dissenting opinion, and this can be signed by other justices.

The question is often asked why a judge or Supreme Court Justice might want to write a dissenting opinion since, in effect, their side 'lost'. The fact is that dissenting opinions can be used in a number of key ways.

First of all, judges want to make sure that the reason why they disagreed with the majority opinion of a court case is recorded. Further, publishing a dissenting opinion can help make the writer of the majority opinion clarify their position. This is the example given by Ruth Bader Ginsburg in her lecture about dissenting opinions titled, "The Role of Dissenting Opinions." 

Secondly, a justice might write a dissenting opinion in order to affect future judgements in cases about situations similar to the case in question. In 1936, Chief Justice Charles Hughes stated that, “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day....” In other words, a justice might feel that the decision goes against the rule of law and hopes that similar decisions in the future will be different based on arguments listed in their dissent. For example, only two people disagreed in the Dred Scott v.

Sanford case that ruled that African-American slaves should be viewed as property. Justice Benjamin Curtis wrote a forceful dissent about the travesty of this decision. Another famous example of this type of dissenting opinion occurred when Justice John M. Harlan dissented to the Plessy v. Ferguson (1896) ruling, arguing against allowing racial segregation in the railway system.

 

A third reason why a justice might write a dissenting opinion is in the hope that through their words they can get Congress to push forward legislation to correct what they see as issues with the way the law is written. Ginsburg talks about such an example for which she wrote the dissenting opinion in 2007. The issue at hand was the time frame within which a woman had to bring a suit for pay discrimination based on gender. The law was written quite narrowly, stating that an individual had to bring suit within 180 days of the discrimination occurring. However, after the decision was handed down, Congress took up the challenge and changed the law so that this time frame was greatly extended. 

Another type of opinion that can be delivered in addition to the majority opinion is a concurring opinion, IN this type of opinion, a justice would agree with the majority vote but for different reasons than listed in the majority opinion. This type of opinion can sometimes be seen as a dissenting opinion in disguise. 

Further Information

Ginsburg, R. B. (2011). The Role of Dissenting Opinions. Minnesota Law Review,95(1), 1-8. Retrieved February 28, 2016, from http://www.minnesotalawreview.org/wp-content/uploads/2011/07/Ginsburg_MLR.pdf