A dissenting opinion is a written statement by a judge who disagrees with the majority’s decision in a case. It is published alongside the majority opinion, carries no binding legal force, and does not change the outcome for the parties involved. What it does is preserve an alternative reading of the law for the public record, and that record has repeatedly become the starting point for later courts and legislatures that overturn the majority’s result.
Where Dissents Appear
Dissenting opinions exist only in appellate courts, where multiple judges hear a case together. A trial court judge decides cases alone, so there is nothing to dissent from. Dissent becomes possible at the courts of appeals, which usually sit in three-judge panels, and at the U.S. Supreme Court, which sits as a body of nine.
At the Supreme Court, the process begins after oral argument. The justices meet in a private conference, discuss the case, and vote. The most senior justice in the majority assigns someone to write the majority opinion, and the most senior justice in the minority can assign the lead dissent. Any justice in the minority is free to write a separate dissent regardless of that assignment. Drafting often runs for months, and the case is not officially decided until the opinions are released publicly, usually by the last day of the Court’s term in late June or early July.1United States Courts. Supreme Court Procedures
In the federal courts of appeals, a dissent from a three-judge panel can trigger a second look. The losing party can petition for rehearing en banc, asking the full court to reconsider, and a strong panel dissent often signals to other judges on the court that the question deserves fuller treatment. The petition typically must show either that the panel failed to follow controlling precedent or that the circuit’s own precedent should be overruled.2U.S. Court of Appeals for the Federal Circuit. Petitions for Rehearing and Rehearing En Banc
What a Dissent Actually Does
A dissent does not create precedent. Lower courts are not bound by it, and litigants cannot cite it as controlling law. Its influence is persuasive, and it works through several channels.
The first channel operates before the public ever reads the decision. Drafts circulate privately among the justices, and a sharp dissent forces the author of the majority to tighten reasoning, address counterarguments, and close gaps. Justice Ruth Bader Ginsburg once noted that her majority opinion in the Virginia Military Institute case went through more than a dozen drafts and emerged “ever so much better” because of Justice Scalia’s dissent. Even when the dissent fails to flip a vote, it can improve the law the majority leaves behind.
The second channel is the future court. Many dissents are written with the next generation of judges in mind, laying out an alternative framework that a later majority may find more persuasive. The third channel is the legislature. Some dissents openly invite Congress or a state legislature to overrule the majority by passing new law. And the fourth is public and academic debate, where a dissent can shift how an issue is understood long before any court revisits it.
Not every dissent is a grand statement. Many are narrow disagreements about how a procedural rule applies to specific facts. The dissents that endure tend to identify a fundamental tension the majority worked around rather than resolved.
Partial Dissents and Plurality Opinions
Disagreement is not always all-or-nothing. A judge can concur in part and dissent in part, agreeing with some of the majority’s conclusions while rejecting others. A justice might join the majority on whether a defendant is liable but dissent on the appropriate remedy, or agree with the result but reject the reasoning used to reach it. These partial dissents are common and produce a more detailed record of where the court’s reasoning holds and where it fractures.
When enough justices split off, the result is a plurality opinion: the court agrees on the outcome, but no single rationale commands a majority. Plurality opinions complicate the task of lower courts trying to figure out what rule to apply. The Supreme Court has said lower courts should look to the “narrowest grounds” a majority agreed on, though in practice this is difficult to pin down. Some lower courts go issue by issue across every opinion, including dissents, to find points where a majority of justices actually agreed on a legal question even if they disagreed about the case overall. The lack of a clear majority rationale weakens the precedential force of the decision and often invites further litigation to clarify the rule.
Dissents That Became Law
The strongest evidence that dissents matter is that several of the most criticized majority opinions in American history were accompanied by dissents that later became the governing rule.
Justice Harlan in Plessy v. Ferguson (1896)
When the Supreme Court upheld racial segregation under the doctrine of “separate but equal,” Justice John Marshall Harlan was the sole dissenter. He wrote that the Constitution “is color-blind and neither knows nor tolerates classes among citizens,” and that forced racial separation on public transportation was “a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.” Nearly six decades later, the Court unanimously struck down segregated public schools in Brown v. Board of Education (1954), vindicating the principle Harlan had argued alone.
Justice Curtis in Dred Scott v. Sandford (1857)
Chief Justice Taney’s majority opinion declared that African Americans could never be citizens of the United States. Justice Benjamin Curtis dissented with a detailed historical argument: Black citizens had voting rights in at least five states when the Constitution was ratified and had participated in that ratification. Curtis pointed out that the Constitutional Convention explicitly rejected a proposal to limit rights to “free white inhabitants,” and he concluded that citizenship depended on birthplace, not race. The Fourteenth Amendment, adopted in 1868, wrote Curtis’s position into the Constitution.
Justice Jackson in Korematsu v. United States (1944)
The majority upheld the forced internment of Japanese Americans during World War II. Justice Robert Jackson warned that the Court’s approval would do more lasting damage than the military order itself, because it would embed “the principle of racial discrimination in criminal procedure and of transplanting American citizens” into constitutional doctrine. He argued that guilt is personal, not inherited through ancestry. In 2018, the Supreme Court formally repudiated Korematsu in Trump v. Hawaii, with Chief Justice Roberts writing that the case “was gravely wrong the day it was decided.”
Justice Brandeis in Olmstead v. United States (1928)
The majority ruled that wiretapping phone lines did not violate the Fourth Amendment because no physical trespass had occurred. Justice Louis Brandeis argued that the Constitution protects the right “to be let alone” and that the framers intended its protections to adapt to new technology. Nearly four decades later, the Court adopted Brandeis’s reasoning in Katz v. United States (1967), holding that the Fourth Amendment protects people, not places, and that wiretapping requires a warrant.
Justice Holmes and the Marketplace of Ideas
Justice Oliver Wendell Holmes earned the title “The Great Dissenter” for opinions that pushed free speech protections past where the Court was willing to go. In Abrams v. United States (1919), Holmes dissented from the conviction of political dissenters under the Espionage Act, writing that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” That marketplace-of-ideas framework eventually became the foundation of modern First Amendment law.
When a Dissent Prompts a New Law
Dissents can also push legislatures to act. The clearest modern example is the Lilly Ledbetter Fair Pay Act. In 2007, the Supreme Court ruled that Lilly Ledbetter had filed her pay discrimination claim too late under Title VII, even though she had not discovered the pay gap for years. Justice Ginsburg’s dissent argued that pay discrimination is different from a discrete act like a firing because it accumulates in small, hidden increments. She closed by telling Congress the ball was in its court.3Justia Law. Ledbetter v Goodyear Tire and Rubber Co – 550 US 618 (2007) Congress responded in 2009 with the Fair Pay Act, which resets the filing deadline with each new discriminatory paycheck, effectively overturning the majority opinion.4Congress.gov. S 181 – Lilly Ledbetter Fair Pay Act of 2009
The pattern is older than it looks. After the Supreme Court ruled in Chisholm v. Georgia (1793) that states could be sued by citizens of other states, Justice Iredell’s lone dissent argued that sovereign immunity should protect the states. His position was adopted almost immediately as the Eleventh Amendment to the Constitution.
How Often Courts Divide
Dissents are not rare at the Supreme Court. In the October 2024 term, roughly 58 percent of cases decided with signed opinions included at least one dissenting vote, which means a unanimous outcome occurred in about 42 percent of cases. The rate fluctuates by term, but split decisions are the norm for cases the Court chooses to hear. The Court tends to grant review in cases where lower courts have disagreed or where the question is genuinely difficult, which is exactly where divided opinions come from.
At the federal circuit level, dissent rates are lower because most cases are more straightforward. When a panel does divide, the dissent carries weight beyond the case: it signals that a legal question is unresolved and gives future litigants a ready-made argument for why the panel got it wrong.
How Blunt a Dissent Can Be
Dissents can be sharp. Justices have called majority opinions “irrational,” “dangerous,” and worse. There are professional limits, though. The Code of Conduct for Justices of the Supreme Court, adopted in 2023, requires justices to be “patient, dignified, respectful, and courteous” in their official dealings and prohibits “harassing, abusive, prejudiced, or biased” behavior.5Cornell Law School. Code of Conduct for Justices of the United States The convention is to attack reasoning rather than colleagues. A dissent that says the majority’s logic leads to absurd results is standard. One that questions another justice’s competence or motives crosses a line that, while occasionally breached, damages the Court’s working relationships. The dissents that endure tend to be the ones where the force comes from the legal argument itself, not the temperature of the language.