Do Supreme Court dissenting opinions matter?

Factual Questions
1

Another 5-4 Supreme Court Case today, where the majority published a ruling that now becomes the law of the land, and the minority published a dissenting opinion explaining why the majority was wrong. Legally, does that dissenting opinion matter whatsoever? Can a lawyer at a future court case use that minority opinion to justify his argument, for example? I’m sure law professors and academics are interested in the minority opinion so they can debate the thought process in their classes or whatever, but since the majority opinion is now settled law, does the minority opinion matter for anything in the practical world?

Practically speaking, does the dissenting opinion serve any purpose other than allowing the minority to whine “Nobody listens to us, but you’ll be sorry some day, and don’t say I didn’t wan you!”?

2

They’re often cited in opinions when the Court overturns an existing precedent.

For example, in the majority opinion on Lawrence v. Texas, Justice Kennedy quoted Justice Stevens’ dissenting opinion on the ruling it overturned, Bowers v. Hardwick:

Justice Warren relied on Justice John Harlan’s dissent on Plessy v. Ferguson in the majority opinion on Brown v. Board of Education, although he did not actually quote it.

Basically, a dissent remains forever as an on-the-record “fuck you!” to the other judges, but also as a guide to future scholars and courts. Apart from anything else, a proof that a past Justice thought the same way is in a sense a validation of one’s own reasoning, even if that line of reasoning was not shared by the others at the time.

3

Another way that dissents matter is when they have great persuasive influence in other, related cases.

A bit of quick background: the “holding” of a court case is the rule of law it creates. That is the part with actual, binding legal force–in a supreme court case, the part that lower courts are compelled to obey as precedent.

“Dicta” is the term for other stuff in the opinion that is not necessary for the holding–for example, suggestions as to how the rule might be applied, or a discussion of how the case might have come out if the facts were different (as a way of limiting its effect), or discussion of the policy behind the holding.

The point is that, while dicta is not precedent–it’s not something lower courts are obliged to obey, it has a lot of influence–it may suggest how the supreme court will rule, or be persuasive.

But dissents can do that too. They can be better, or more persuasive than dicta in the opinion. And in that regard, they matter a lot.

So, for example: let’s imagine a hypothetical case about how to apply a law banning “motor vehicles” in a park.

In the case, there is a 5-4 decision. Justice Douglas, writing for the majority, holds that a lawnmower is a “motor vehicle” because it has a working motor.

The opinion (still Douglas, J, writing for the majority), goes on to suggest in dicta that it’s not that important that the motor be working–that the reasoning would apply to a car with a non-working motor. This is dicta because it’s not necessary to decide the case—it’s a hypothetical about how the reasoning would apply to a different case to which the holding wouldn’t apply.

In his dissent, Justice Holmes disagrees with the reasoning of the holding–that in his opinion, a “motor vehicle” is something that people ride on. He also disagrees with the dicta, arguing that it’s crazy to call something a “motor vehicle” when the motor is a useless lump of metal–that in his opinion, the motor must be working.

Now, a District Judge is deciding a case about an antique tank put up as a monument–whether it is banned as a “motor vehicle”. It has a motor, but the motor doesn’t work. If the holding did apply, he’d have to follow it–to listen to Justice Douglas, and ignore Justice Holmes.

However, in this case, holding doesn’t apply–the tank’s motor doesn’t work. So there is no “rule” he has to obey. He has to decide something the Supreme Court has talked about, but hasn’t ruled on–whether something with a non-working motor is a motor vehicle.

In our hypothetical, the district judge may agree with Justice Holmes’ reasoning–that it’s crazy to call something a “motor vehicle” when it doesn’t have a working motor.

In cases like that, dissents can be very important. The dissent does not bind the lower court–it will never have to obey it–but it might be very persuasive, and have a lot of effect in deciding cases similar to the Supreme Court case.

4

And sometimes the majority opinion isn’t unanimous, in which case the minority opinion might be important for deciding what the court would think. [There’s a decision like that in my field]

So three justices say “Side A wins, because they’ve done X”, two more say in a separate opinion “Side A wins, but because they’ve done Y (we don’t think X matters)”, and four other justices say in dissent "side B wins, because while A did do Y (which is necessary), they didn’t do Z (which is also necessary). "

Now if in a similar case, one side does X and Y, just like the original case, then clearly precedent is that they win, and if they do neither X nor Y, precedent is pretty clearly against them. But if one side does Y and Z and not X, there’s a very good argument the lower court should rule in their favor, as five members of the SCOTUS have said they think that’s enough.

5

An earlier thread that may be of interest: What is the point of dissenting SCOTUS opinions? - Factual Questions - Straight Dope Message Board

6

Which was?:confused:

7

“A dissent in a court of last resort 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 believes the court to have been betrayed.” - Chief Justice Charles Hughes

8

That hypo sounds strangely familiar… :smiley:

9

Presumably Citizens United v FEC, the campaign finance case which allowed corporations and unions to spend as much as they like on political ads.

10

Here’s the Wiki article on it: Citizens United v. FEC - Wikipedia

11

There was, after all, a reason I picked Mr. Justice Holmes as the one with the better analysis. There’s no need to reinvent the wheel–It’s an easy to understand problem–which is why Holmes found it to be useful to explain how legal analysis worked, and why I found it useful in framing my hypo.

12

Where online can one read the dissenting opinions? Do you have to know the legal names and exact dates to do that? I’d love to read dissenting Dredd Scott decision and the one sending all the Asian people to concentration camps, but don’t know what that last one is called or exact date, 1942??

I’d like to read about how the forced draft was justified and if anyone dissenting offered the simple solution of higher pay to get military cadets, and things like that. I bet those are a good read if not censored. I always heard during WW2 everything was censored, I wonder if they got rid of it all, to protect our freedom of course?

13

There should be a bunch of sites like that. I think www.oyez.org is a good place to start. It does help to know the case names, but a quick Google search will usually help you get that. And the site does have a search function.

Dred Scott v. Sandford. You can see the majority opinion first and then the dissent.

Korematsu v. U.S. This is from FindLaw, a different site.

I’ve never heard of a Supreme Court opinion being censored. Maybe to protect classified information, but I don’t know who would even have the authority to do that.

14

Thank you. I meant censored from being published, to make it like everyone was for it during the war. I know the dissent happened, just was not sure it survived.

15

The draft has historically been assumed to be part and parcel of Congress’ power to raise an army. There was a challenge to the draft as violative of the 13th Amendment, but that was shot down in Arver v. U.S., 245 U.S. 366 (1918), long before WWII. Most challenges to the draft have been in the form of riots rather than court cases.

16

For what little it is worth, Heinlein, who felt strongly that it was in general a man’s duty to join the service in time of war in defense of family and country, felt that the draft was involuntary servitude in violation of the Thirteenth Amendment. I know of no legal scholar who would be prepared to argue that, however.

Probably the classic example of the value of a dissent when I was in school was that of John Marshall Harlan the elder in Plessy v. Ferguson, which was an important element of the majority opinion in Brown v. Board of Education I. Former Doper Andygirl appears to have been the originator of the four word trope that has become a meme on the subject: “‘Separate but equal’ … isn’t!”

17

No dissenting opinion has ever been censored of which I’m aware, even during wartime or grave national crisis. I cannot imagine the Supreme Court submitting itself to the censoring authority of any other branch of government. The only “censorship” is in the justices’ own determination of what they do or don’t wish to write.