A dissenting opinion is a written explanation by a judge who disagrees with the outcome a majority of the court has reached. It appears in appellate and supreme courts, where cases are decided by panels rather than a single judge. The dissent does not change the result for the parties and does not create binding law, but it preserves the losing side’s reasoning in the official record and sometimes becomes the foundation for a future court to reverse course.1Legal Information Institute. Dissenting Opinion
Where a Dissent Fits Among Court Opinions
When a multi-judge court decides a case, several kinds of writings can come out of it. Knowing what each one does makes clear what a dissent is doing differently.
- The majority opinion is joined by more than half the judges on the panel. It resolves the case and creates binding precedent that lower courts must follow.
- A concurring opinion is written by a judge who agrees with the majority’s result but reaches it through different reasoning. A concurrence does not change the outcome.2Legal Information Institute. Concurring Opinion
- A dissenting opinion is written by a judge who disagrees with both the result and the reasoning the majority used to get there.1Legal Information Institute. Dissenting Opinion
- A per curiam opinion is an unsigned opinion issued by the court as a whole, often used to resolve cases summarily.3Supreme Court of the United States. Opinions
- A plurality opinion is the opinion with the most support when no single rationale commands a majority. Plurality decisions create weaker precedent because they lack the full agreement that gives a majority opinion its force.
Any judge who disagrees with the result can write separately, so a single case may produce more than one dissent, each approaching the issue from a different angle.1Legal Information Institute. Dissenting Opinion Justices can also write dissents from a denial of certiorari, objecting to the court’s refusal to hear a case at all. Those writings don’t address the merits; they signal that a justice believed the issue deserved review.3Supreme Court of the United States. Opinions
What a Dissent Can and Cannot Do
A dissent has no binding legal force. It does not establish precedent, no lower court is required to follow it, and it cannot alter the outcome for the parties in the case. The doctrine of stare decisis, which requires courts to respect prior rulings, applies only to the holding of the majority opinion.4Federal Judicial Center. Stare Decisis1Legal Information Institute. Dissenting Opinion
What a dissent can do is operate as persuasive authority. Lawyers challenging an existing precedent cite well-reasoned dissents to show a court that the issue was contested from the start, that the majority’s reasoning had recognized weaknesses, and that a different outcome is legally supportable. In effect, the dissenting judge hands future litigants a blueprint.
Dissents can also prompt action from legislators. When a dissent identifies a gap or ambiguity in a statute, it points lawmakers toward a problem the courts could not resolve on their own. The legislature may then amend existing law or pass new legislation to settle the issue. This is one of the less visible ways a losing judicial opinion can shape the law without ever being adopted by another court.
A dissent also fills gaps the majority left open. The majority author controls which facts to emphasize and which legal principles to discuss. A dissenting judge often highlights overlooked facts and omitted analysis, giving lawyers in future cases material to work with when the majority opinion doesn’t address a particular sub-issue.
Why Judges Write Dissents
Beyond preserving a position for the future, dissents sharpen the law being made in the present. The dissenting judge lays out exactly where the majority went wrong, whether by misreading a statute, overlooking key facts, or applying the wrong legal standard. That competing analysis forces the majority to tighten its own reasoning. The exchange between the two sides often produces a clearer, more carefully worded final opinion than either would have written alone.5Supreme Court Historical Society. The Practice of Dissent in the Early Court
On rare occasions, the drafting process actually flips the outcome. A justice who initially voted with the majority may switch sides after reading a dissent, turning what started as a minority view into the new majority.6United States Courts. Supreme Court Procedures
Dissents also carry a signaling function. A judge who notes that a ruling passed by a slim margin or rested on novel reasoning is telling the legal community that this precedent is fragile. Lawyers reading that signal know the area of law is contested and may be ripe for challenge.
Perhaps most importantly, a dissent keeps the majority’s view from being the only recorded interpretation of the law. Courts deal in written reasoning, and leaving only one perspective in the record impoverishes the record. The dissent ensures that alternative readings survive for future judges, scholars, and legislators to consider.
Famous Dissents That Later Became Law
The strongest argument for writing dissents is that some of them end up winning. Several famous examples show a lone voice in opposition being vindicated decades later.
Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896) is the most celebrated. The 7-1 majority upheld racial segregation under the “separate but equal” doctrine. Harlan rejected the premise entirely, writing that “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”7Justia. Plessy v Ferguson, 163 US 537 (1896) Fifty-eight years later, the Supreme Court unanimously overruled Plessy in Brown v. Board of Education, adopting reasoning that aligned squarely with Harlan’s dissent.
Justice Robert Jackson’s dissent in Korematsu v. United States (1944) challenged the majority’s approval of Japanese American internment during World War II. Jackson argued that convicting a citizen for being present in his home state, based solely on his parents’ national origin, violated the basic constitutional principle that guilt is personal and not inherited.8Legal Information Institute. Korematsu v United States, 323 US 214 (1944) The Korematsu majority was formally repudiated by the Supreme Court in 2018.
The dissents in Dred Scott v. Sandford (1857) similarly challenged a 7-2 ruling that denied citizenship to Black Americans. Those dissenting views were vindicated through constitutional amendments following the Civil War. The pattern repeats throughout American legal history: a minority position, documented only because a judge took the time to write it down, becomes the foundation for a later generation’s understanding of the law.
Reading a Dissent from the Bench
Occasionally, a justice feels so strongly about a case that publishing the written dissent isn’t enough. The justice will read the dissent aloud from the bench on the day the decision is announced. This is rare and deliberate. During the Supreme Court’s 2011 term, justices read dissents from the bench in only six of the sixty-five decided cases, even though about sixty percent of those cases produced written dissents. The legal community understands the act as a public statement that the justice considers the majority’s ruling to be seriously flawed. It is the judicial equivalent of pounding the table.