by Jodi L. Miller
When a U.S. Supreme Court majority opinion is released, legal scholars scrutinize it, either praising it for its considered legal argument or disparaging it because they disagree with its conclusion. What about the dissenting opinion?
Not much attention is paid to dissenting opinions—most of the time. U.S. Supreme Court dissenting opinions sometimes influence future opinions of the Court, shape case law, and in some cases, change the course of U.S. history.
In his book Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue, Melvin I. Urofsky, a noted legal historian and history professor at Virginia Commonwealth University, wrote that only the hardest cases to resolve get to the U.S. Supreme Court. He notes in the book that if an issue was easy, it would have been decided by lower courts.
“Because the questions are hard, and because they cause disagreement among the people, it is not surprising that the justices of the high court will also disagree,” Professor Urofsky wrote. “The dissenter will point out what he or she perceives to be the weakness of the majority opinion, the faulty constitutional reasoning, or a failure to understand the actual facts of the case. The dissenter is telling the majority, ‘Wait. I think you have this wrong. You need to look at that constitutional clause and its history again. You need to ask other questions.”
Who is it for?
Who are dissenting opinions intended to convince? Fellow justices? Future courts?
It is both, according to Edward Hartnett, a professor at Seton Hall University Law School, and an expert on the history and practice of the U.S. Supreme Court. Professor Hartnett explains that before U.S. Supreme Court opinions are publicly released, they are circulated internally among the justices.
“A dissent circulated inside the Court has the potential to change another justice’s mind,” Professor Hartnett says. “What was first circulated internally as a draft dissent might turn into a majority opinion, while what was first circulated as a draft majority opinion might turn into a dissent.”
When the Court was first established in 1789, and up until approximately 100 years ago, Professor Hartnett notes that it was common for justices to only dissent internally, among their fellow justices but not in public. A justice would only publicly dissent if “they thought it was especially important to do so,” he says. Professor Hartnett notes that custom is “not the current practice” of today’s Court.
“When a justice dissents publicly, he or she is writing for the future,” Professor Hartnett says. “Sometimes it is to persuade future justices; sometimes it is to persuade Congress to act; sometimes it is to call attention to an issue; and sometimes it is to try to minimize the damage done (as the dissenter sees it) by the majority.”
Thomas J. Healy, a professor at Seton Hall University Law School and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America, thinks that most dissenting justices are speaking to those outside the Court with the hope that their views will eventually triumph.
“A justice who dissents has, by definition, already failed to persuade a majority of the Court. Dissenting is a way to point out the error of a decision to future courts and those outside the judicial system,” Professor Healy says. “In the best-case scenario, a dissent may end up prevailing in the long run and eventually becoming the law. This has happened a number of times throughout history.”
Ruth Bader Ginsburg, who sat on the U.S. Supreme Court from 1993 until her death in 2020, and wrote her fair share of dissents, once said, “It has been a tradition in the United States of dissents becoming the law of the land. So, you’re writing for a future age, and your hope is that with time the Court will see it the way you do.”
Professor Hartnett notes that dissents in a wide range of cases have strongly influenced later majority opinions. Examples, according to Professor Hartnett, include dissents that have questioned the constitutionality of legally mandated racial segregation, punishing subversive speech under the First Amendment, limiting economic regulation under the due process clause, and compelled payments from public employees to unions under the First Amendment.
Changing history
The two dissents issued in the 1857 case of Dred Scott v. Sandford are examples of U.S. Supreme Court dissents that helped change the course of history.
Dred Scott was enslaved in Missouri in the 19th century. His master, Dr. John Emerson, was a surgeon in the army and took Scott with him when he travelled. Those trips took Scott to Illinois, a free state, as well as the territory of Wisconsin, which was also free. The legal precedent at the time, especially in Missouri, was “once free, always free,” meaning that if a slave was taken into a free state, and resided there, they automatically gained freedom. The doctrine stated that they could not be re-enslaved if they returned to a slave state. In April 1846, Scott sued for his freedom.
The Missouri Supreme Court did not uphold the “once free, always free” doctrine, holding instead that Scott was still enslaved. Once the case came before the U.S. Supreme Court, it ruled 7-2 that Blacks had no right to sue in federal court. The Court’s majority opinion, written by Chief Justice Roger B. Taney, further stated that Blacks were not, and never could be, citizens of the United States. The ruling also declared that the 1820 Missouri Compromise was unconstitutional. The Missouri Compromise attempted to maintain the balance between slave states and free states, admitting Maine as a free state and Missouri as a slave state. It also restricted slavery to territories south of a certain dividing line (the 36th parallel).
Justice John McLean, who sat on the U.S. Supreme Court from 1829-1861, and Justice Benjamin Curtis, who sat on the Court from 1851-1857, issued separate dissents in the Dred Scott case. Both disagreed with Justice Taney’s argument that Blacks were not citizens at the time of the U.S. Constitution’s adoption, pointing out that free Blacks had political rights in 1787, and in some states—Massachusetts, New Hampshire, New Jersey (for a limited time) and New York—they could vote. Justice McLean’s dissent discussed the concept that one’s place of birth was tied to citizenship. His argument eventually influenced the 14th Amendment, which granted birthright citizenship to those that had been previously enslaved.
“Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen,” Justice McLean wrote. “Where no slavery exists, the presumption, without regard to color, is in favor of freedom.”
Justice Curtis’ dissent focused on, among other things, the overreach of the majority of the Court, who were decidedly pro-slavery.
“When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean,” Justice Curtis wrote.
According to Professor Urofsky’s book, a New York publisher printed the Curtis dissent in its entirety as a pamphlet. It was used by the new Republican Party candidates, who were against slavery, in the 1858 mid-term elections, as well as the 1860 presidential election. In fact, Abraham Lincoln quoted from Justice Curtis’ dissent in some of his most famous speeches during his presidential campaign.
Ultimately, the Civil War and later the ratification of the 13th, 14th and 15th Amendments to the U.S. Constitution effectively overturned the Court’s decision in Dred Scott.
Right all along
Justice John Marshall Harlan, who served on the U.S. Supreme Court from 1877 until his death in 1911, issued a lone dissent in the 1896 case of Plessy v. Ferguson, proving that a lone voice can make a difference.
With its majority opinion in Plessy, the U.S. Supreme Court upheld a Louisiana law—the Separate Car Act—requiring separate railroad cars for Black and white passengers. The Louisiana law is where the phrase “separate but equal” comes from.
Homer Plessy, who was seven-eighths white, but technically Black under Louisiana law, was recruited by a civil rights group that wanted to overturn the law. Plessy took a seat in the whites-only car on a Louisiana train. When he refused to vacate his seat, he was arrested. His attorneys argued that the Separate Car Act violated the U.S. Constitution’s Thirteenth and Fourteenth Amendments.
The Court’s majority opinion in Plessy stated, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
In an often-quoted dissent Justice Harlan wrote, “Our Constitution is colorblind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law of the land are involved…”
Nearly six decades later, Thurgood Marshall, then the lead attorney for the plaintiff in Brown v. Board of Education, who would later become the first African American appointed to the U.S. Supreme Court, cited the arguments in Justice Harlan’s Plessy dissent to bolster his case. Plessy was overturned in 1954 with the Court’s decision in Brown. The Court unanimously ruled that racial segregation in public schools is unconstitutional.
Dissenting rarely
Justice Oliver Wendell Holmes served on the U.S. Supreme Court for 30 years, from 1902-1932, and is sometimes called “The Great Dissenter.” Ironically, according to Professor Healy, Justice Holmes did not like to dissent, “believing it undermined the reputation and collegiality of the Court.” He says Justice Holmes dissented if he felt strongly about an issue and did so in high-profile cases involving workplace regulations and free speech.
“Justice Holmes’ dissents were powerful because they were rare. In several instances, his dissents ended up having more influence on the law than the majority opinions he disagreed with,” notes Professor Healy. “A justice who dissents all the time becomes like the boy who cried wolf.”
As an example, Professor Healy points to Justice Felix Frankfurter who served on the Court from 1939 to 1962.
“When Felix Frankfurter took his seat on the Court in 1939, he was one of the most respected legal minds in the country,” Professor Healy wrote in a review of Professor Urofsky’s book that appeared in the Boston Review. “But after writing 251 dissents over the course of twenty-three years—many of them long, pedantic [dull], and condescending—his reputation suffered, and with it the power of his dissents; today his influence on the law is considered insignificant.”
Discussion Questions
- What do you think of the power of dissent at the U.S. Supreme Court? Why do you think it takes so long in some cases for dissent to change minds and become law? Explain your answer.
- Justice Harlan was a lone dissenter in a case about equality. What issue would you fight for even if it meant going against the majority? Explain what issue and why.
Glossary Words
dissenting opinion — a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
overturned —in the law, to void a prior legal precedent.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
ratification—the action of formally signing a contract or agreement to make it official.
This article originally appeared in Constitutionally Speaking—The U.S. Supreme Court