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Robbins: The dissent of man

The role of dissent in legal opinions is generally underappreciated, undervalued, and misunderstood. We’ll get there in a sec, but let’s first understand exactly what it is. Then, we’ll move on to why it matters.

Stated explicitly, a “dissent” may be thought of as the explicit disagreement by one or more judges with the decision of the majority on a case before them. As the word implies, another way to think of a dissent is as a gripe, a grouse, a bitch, complaint, or simply sour grapes. But not so fast…

Rather than serving just to air one’s differences, dissents serve a critical function in the law. But one last bit first … In order for there to be a dissent, there has to be a “majority.” A majority, in turn, presupposes that there is a panel of judges rendering the majority opinion — the decision of “the court.”



As such, as a single judge rules on a case at the trial level, there are neither majority nor minority opinions issued from the trial court. Only when a case gets bumped up the line to the Court of Appeals or The Supremes, does a panel of judges weigh in on a matter. And when more than one weighs in, there may be a split or lack of unanimity. As in our democracy, when a split arises, the majority carries the day.

As you likely know, the United States Supreme Court consists of nine justices, appointment by the president if and when a vacancy on the court arises. Each of The Nine serves “for life” or so long as each determines s/he is fit to carry on and/or that the fire still burns.



That there are nine is not an accident. Although there have been more or fewer justices at times in our history — and there has been some recent chatter about expanding The Supremes to as many as 13 — that there are an odd number leads to some convenient math. If there is a split — say five to four (which is becoming increasing common on our fractious times) — the five constitute the “majority” and the “minority” is left to pen the reasons for their discontent.

As a quick aside: What is the difference between a justice and a judge? It’s pretty simple really. Judges handle local cases in lower-level courts, and justices labor for the common weal (general welfare) in the state and federal Appeals and Supreme Courts. Therefore, justices — but not judges — can experience, in the vernacular of the boxing ring — a split decision.

In the early years of the Supreme Court, dissents were a rare and exotic species. Only when Chief Justice John Marshall, who steered the Court from 1801-1835, did the idea of a dissenting opinion emerge. Even then, it occurred almost by accident when, in order to produce a more forceful ruling, Chief Justice Marshall ended what had been the convoluted practice of each member offering his own opinion. Once so ended, justices were free to register their equally vigorous disagreements with the direction taken by the majority. Thereafter, judicial dissents became a thing.

But other than a gripe, or bitch, or sour grapes, what purpose do dissents serve? It is twofold. First, dissents lay out — often in considerable detail, at times exceeding both in length and ferocity the majority opinion — why the dissenter (or, at times, dissenters) disagree. Second, and at least equally importantly, dissents are meant to educate, steer, direct and influence the future. Stated concisely, a dissent may inspire future cases and the future direction of the court. As such, a dissent may be a road map for change, however far off in the future.

Through the years, there have been some famous dissents, dissents that have shaped the Court, informed cases yet unheard, influenced the conscience of the nation, and sparked both change and the course of history. Justice Benjamin Curtis’s dissent in the infamous Dred Scott case of 1857 is one. In declaring that no one whose ancestors came on slave ships to these United States would — or could ever be — a citizen, the majority helped dredge the course that led to civil war.

Curtis’s dissent — although not a full-throated endorsement of complete racial equality — nonetheless stands out as a beacon of rectitude, enlightenment and reason. Penning his own dissent, Justice John McLean wrote, “Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen… Where no slavery exists, the presumption, without regard to color, is in favor of freedom… A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man…”

Known as the Great Dissenter for his passionate and frequent defense of the oppressed in defiance of his brethren on the court, Justice John Marshall Harlan distinguished himself in his dissent in the 1892 Supreme Court case of Plessy v. Ferguson wherein the majority ruled that the doctrine of “separate but equal” was conscionable and consonant with the 13th and 14th Amendments. Said Harlan, “Our Constitution is color-blind 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 of his color when his civil rights as guaranteed by the supreme law of the land are involved…”

Justice Harlan’s dissent would stand as a testament to his advanced views on civil rights until Brown v. Board of Education confirmed his views 58 years later. The writings in his dissent would light the way.

There have, of course, been others: Justice Brandeis’s dissent in the 1928 case of Olmstead v. United States, Justice Jackson’s dissent in the 1944 case of Korematsu v. United States, Justice Antonin Scalia’s eloquent dissent in the 2003 case of Lawrence v. Texas, and more.

Dissents are — at least at times — signposts that often peek around the ermine curtains of the future. More than mere gripes or grumbling, they serve a key and useful purpose in the ever-evolving soul and spirit of the law.


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