USA Law

Dissenting Opinion

Dissenting Opinion in the United States

Statement from a member of a court disagreeing with the disposition of the case by the majority. A dissenting opinion is essentially a judicial minority report. A dissent may represent the views of a single judge or may be joined by additional judges. A dissenting opinion does not have precedent value as such in that it cannot authoritatively define a point of law. As a result, judges who write dissents have greater freedom with the arguments they advance. Since dissenters need not attend to finely focused legal points as majority opinions must, they are often sweeping in scope and contain powerful and abstract phrasing. It is possible to dissent “in part.” If a court reviews a case containing multiple issues, a judge may agree with the majority’s disposition of some, but not all, points. In such a case, a judge disagrees only on one or two points or only partially disagrees with the court.

Analysis and Relevance

A dissenting opinion allows a member of a court to convey his or her disagreement with a case outcome. The dissent expresses the reasons for that disagreement. Dissents also have two other purposes. First, a dissenter disagrees with the decision and may try to limit its impact. A dissent may invite Congress or a state legislature to modify the ruling if it is based on the interpretation of statute. The dissent may otherwise indicate ways to interpret the ruling narrowly. This can affect the way a lower court applies the ruling. Second, the dissent can encourage future appeals on the same question. Occasionally, a dissenting position in one case becomes the majority position when the issue is subsequently reviewed. For example, Justice Black’s dissent in Betts v. Brady (316 U.S. 455: 1942) argued that states must provide legal counsel to indigent felony defendants. A majority of the Court eventually moved to that position and established the right to appointed counsel in Gideon v. Wainwright (372 U.S. 335: 1963).

Dissenting Opinion

United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled DISSENTING OPINION, in cases in which the judges of a multijudge court are divided as to the decision, it is customary for those in the minority to file a dissenting opinion. This practice is followed in the Supreme Court of the United States.

Resources

Notes and References

  1. Definition of Dissenting Opinion from the American Law Dictionary, 1991, California

See Also

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