DISSENT
An explicit disagreement by one or more judges with the decision of the majority on a case before them.
A dissent is often accompanied by a written
dissenting opinion, and the terms dissent and
dissenting opinion are used interchangeably.
Dissents have several functions. In some
cases, they are a simple declaration of disagree-
ment with the majority. In others, they instruct,
prod, scold, or otherwise urge the majority to
consider the dissenter’s point of view.
Dissents carry no precedential weight and
are not relied on as authority in subsequent
cases. However, attorneys and judges sometimes
consult them to understand the dissenter’s
analysis of the majority opinion. Attorneys and
judges may also cite a dissent if they agree with
its reasoning and conclusion and seek support
for a change in the law.
Although the majority opinion constitutes
the judgment of the court, its legal weight can be
diminished if a sufficient number of judges dis-
sent. On issues that divide the courts and the
country, there can be sharply divergent opinions
on what the law is or should be. During the
1990s, for example, one divisive question before
the U.S. Supreme Court was whether AFFIRMA-
TIVE ACTION programs to redress the effects of
past discrimination were constitutional. In
Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475,
132 L. Ed. 2d 762 (1995), the U.S. Supreme
Court held that Georgia’s congressional redis-
tricting plan, implemented to give minorities a
strong voting block, constituted racial gerry-
mandering and violated the EQUAL PROTECTION
CLAUSE. However, the case was not an unquali-
fied success for those urging the rejection of
affirmative action. Five justices joined in the
majority block (plurality) in the case, and four
justices filed dissents. With such a large minor-
ity, the dissents gained significance. Legal ana-
lysts monitor close cases such as Miller because a
shift by one justice would signal a change in the
law.
Dissents are a relatively recent phenomenon.
Chief Justice JOHN MARSHALL, who served on
the Supreme Court from 1801 to 1835, urged
unanimity on the Court to demonstrate that its
opinions were the last word on an issue. Others
believed that individual conscience should dic-
tate a justice’s opinions, without regard to una-
nimity. In its early years, most of the Supreme
Court’s decisions showed little or no dissent.
During the late nineteenth century and early
twentieth century, as the Court became firmly
established as the law of the land, more dissents
appeared. Yet, even those who dissented during
this period often recognized the importance of
consensus opinions. For instance, Justice OLIVER
WENDELL HOLMES JR. , a frequent and famous
dissenter, wrote a scathing dissent in LOCHNER V.
NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed.
937 (1905), but not before he expressed his
reluctance to do so: “I regret sincerely that I am
unable to agree with the judgment in this case,
and that I think it is my duty to express my dis-
sent.”
By the 1960s and 1970s, dissents were an
accepted part of the Court’s business, perhaps
reflecting the fractious political and social cli-
mate of those years. One frequent dissenter dur-
ing the mid-twentieth century was Justice
WILLIAM O. DOUGLAS. During his thirty-six
years on the Court, from 1939 to 1975, Douglas
wrote 524 opinions of the Court, 154 concur-
ring opinions, and an astounding 486 dissenting
opinions. In addition, he dissented without
opinion in 309 cases.
Justice BENJAMIN N. CARDOZO, of the
Supreme Court, defended those who disagree
with the majority, writing that the dissenter is
“the gladiator making a last stand against the
lions.” A few justices raised their roles as dis-
senters to an art form. Justices WILLIAM J. BREN-
NAN JR. and THURGOOD MARSHALL displayed
particular courage in opposition to the majority.
During their long tenure on the Court, Brennan
and Marshall were unwavering in their convic-
tion that the death penalty violates the Consti-
tution. By doggedly and relentlessly repeating
their dissent, they sought to win others to their
view that the law on CAPITAL PUNISHMENT
should be changed.
Together as well as separately, Brennan and
Marshall wrote scores of dissents in death
penalty cases. In so doing, they opposed clear
precedent that supported the legality of capital
punishment. However, both were convinced that
they were justified in their continued opposi-
tion. Brennan felt that the intrinsic morality of
the EIGHTH AMENDMENT superseded any right
of individual states to impose capital punish-
ment. He wrote, “It would effectively write the
[CRUEL AND UNUSUAL PUNISHMENT] clause out
of the BILL OF RIGHTS were we to permit legisla-
tures to police themselves by having the last
word on the scope of the protection that the
clause is intended to secure against their own
overreaching.” Marshall’s opposition was less
philosophical and more practical. He repeatedly
pointed out that the application of the death
penalty was ARBITRARY and unfair, and affected
minorities disproportionately. He felt a respon-
sibility to continue bringing this issue before the
public and believed that most people, if suffi-
ciently informed about all its ramifications,
would find capital punishment “shocking,
unjust, and unacceptable” (FURMAN V. GEORGIA,
408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346
[1972] [Marshall, J., dissenting]).
Some legal analysts believe that dissents are
an important part of the system of checks and
balances. Justice CHARLES E. HUGHES—who
served on the Court from 1910 to 1916, left the
bench to run for president, and then returned to
the Court as chief justice from 1930 to 1941—
wrote, “A dissent . . . is an appeal to the brooding
spirit of the law, to the intelligence of a future
day, when a later decision may possibly correct
the error into which the dissenting judge
