Why do appeals courts offer a dissenting opinion? I guess I could understand if it was to be used as a basis of an appeal or to support an appeal, but how about the U.S. Supreme Court? What good is a dissenting opinion from them?
Thanks
Dissenting opinions are written to influence the debate on the issue. Sometimes, the logic of the dissenting opinion is used in subsequent majority opinions.
Dissenting opinions also allow judges to state their case when they strongly disagree with the majority’s reasoning.
In part, the dissenting opinion is a left over from the days when every justice issued an opinion, and you had to read them all to see what the court was actually deciding. We got that from England. Thus, on our original five member Supreme Court, you had to read five opinions to find out what the court had decided to do, and there might be five different reasons for doing what it did even if all five agreed as to the disposition.
Now, the trouble with that is it makes the concept of stare decisis a bitch to employ. This is the idea that a thing decided should stay decided. Thus, if the Supreme Court decides that it is unconstitutional for the federal government to buy land for a national park, you’d like to know if the Court decided this on the basis of a lack of power to buy land, or a lack of power to create national parks. Otherwise, when the federal government tries to use donated land to make a national park, you don’t know if this is constitutional or not. If in the original case you have to read what all five are saying and figure out what reasoning they are using, predicting future outcomes gets hard.
So very early on, the Supreme Court modified the concept of issuing opinions to allow justices to sign onto an opinion written by another justice. Thus, if there was little significant disagreement among the justices in favor of a particular disposition, they could all piggyback on one decision, authored by one of their number. If a majority of the justices agreed with a particular opinion, that opinion established the law regarding the outcome of the case. In our example, you’d know which rule of law was being imposed by reading one opinion, not five.
Which brings us back to dissents. Justices, like Americans in general, are argumentative bastards. And, like most of us who argue, they like getting in the last word. AND, like most of us who argue, they like having others hear what they have to say. After all, the whole concept of free speech is about putting conflicting ideas and thoughts out where they can be reviewed and reflected upon by the people of the country; in what arena would it be more important for this to occur than our highest court? So, despite the fact that a dissenting opinion has absolutely no “value” as regards that case, nor any true value as a precedent for future action by lower courts, it has the very valuable effect of letting us know exactly what the minority thinks of what the majority is doing. A dissenting opinion also forces the majority to address certain issues in the majority opinion, because the majority knows that the dissent is raising the issue (the justices all get to read the opinions in draft before they are issued and modify/edit before release).
Indeed, dissents will often be issued in situations where no majority opinion issues. When the Court denies review (certiorari in the pretentious Latin it insists on using), a dissenting justice (who wanted the case reviewed) may issue a dissent stating why he/she thinks it should be reviewed. Similarly, a dissent may be issued when the Court deals with a case on which review was granted, but disposes of it subsequently with some per curiam opinion (an unsigned opinion on behalf of the court as a whole usually dealing with the case in a relatively administrative fashion such as by refering to another recently issued decision).
By tradition, because the majority opinion is stating the law of the land, it tends to be written in a very didactic first person plural, much as an essay on the subject, without much personal reference. Dissents, on the other hand, are often pithy, personal and pointed. Some of the greatest quotes from Supreme Court history have come from dissents. Just this term, the dissenting opinion of Justice Stevens in the Bush v. Gore case was a masterpiece of well written personal critique; the majority opinion, forced to cater to five justices, was much blander. And dissents have often lead to future majority opinions. Justice Holmes’ dissent in Lochner v. New York eventually became the standard by which the Supreme Court reviewed economic legislation. And recent efforts by Justice O’Connor to breathe life into the privileges and immunities clauses of the Constitution lead to Justice Stevens adopting that theory in striking down California’s attempt to pay newcomers different welfare benefits than long-standing residents in Saenz v. Roe.
So, in part dissents are left overs, traditional pieces of opinion from the days when every opinion had an equal value. But they serve an ongoing valuable purpose, when used properly.
DS
I could not have hoped for such a complete answer, thank you. That is pretty much was I assumed, but you explained it superbly.
I agree that DSYoungEsq has given us a masterful, concise account of the purpose of dissenting opinions, but I have one quibble: the Supreme Court originally had 6 members, not 5: the Chief Justice and 5 Associate Justices. (See the Judiciary Act, 1789, §1.)
It’s also worth noting that the Judiciary interprets the law, and Congress often changes the law after an unpopular decision, to “correct” what’s seen by some as a wrongful action by the Court. The minority opinion can be useful ammo, and sometimes provide a rough outline, for this legislative action.
I’m also curious about how it works when there is a fractured court. I recall a case where there were 9 separate opinions written. This seems to be the same situation DSYoungEsq described from the early days. If each of the nine opinions has a section not subscribed to by a majority, then is there a formal, first person plural, majority opinion?
Thanks for the kudos! I like the subject; I guess it shows. 
The Court in its first year only had five justices; Justice Iredell didn’t get confirmed and seated until 1790. But Northern Piper is correct that its composition was originally set at 6 members.
On occaision, the Court is unable to produce a majority opinion. When that happens, the case loses its ability to be used as precedent for further decisions, because there is no indication what the outcome of a future case would be. The result for the case itself will depend on the procedural reason the Court was hearing the case, as well as what, if any, common decision a majority of the justices reached regarding disposition of the case.
For example: Taking the recently decided case of Kyllo v. U.S., which dealt with the constitutionality of “searching” Mr. Kyllo’s house by pointing a heat scope at it to see if he was using high-power lamps to grow marijuana. As it turned out, five justices agreed that this was an unreasonable search; four justices disagreed (though the dissenting opinion of Justice Stevens is far from a masterpiece of clarity). But let’s assume instead the following result: Justice Ginsburg, joined by Justices Breyer and Souter, asserts that there was a search, and the search was unreasonable because there was no warrant; Justice Scalia, joined by Justices Thomas and Rhenquist, asserts there was no “search”, thus there is no Fourth Amendment implication; Justice Stevens, joined by Justices O’Connor and Kennedy, asserts there was a “search”, but the search was reasonable because it falls under a recognized exception to the general rule that warrantless searches are unreasonable.
Result of the case? The admission of the heat scope evidence is admissible, affirming the decision of the Ninth Circuit to that effect.
Precedent for the future? Limited. Six justices agree that the use is a “search”, so in a future case parties might cite the case for the proposition of law that use of technically advanced devices to determine what emanates from a house is a “search”. But because no five justices agree that the “search” is either reasonable or unreasonable, no one can cite the decision for that purpose.
For a classic example of a tortured decision with multiple opinions, making the case very difficult to use for precedential value, read the opinions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Another way this can happen is when one member of the Court has recused himself and there are only 8 justices participating. A 4-4 split will result in the affirmation by default of the appellate court decision being reviewed, and the case will have no precedential value. Then the guessing game begins as to which way the non-participating justice would go if the same issue was brought again. 
As to how the opinions are written in such case, that will depend. Often an opinion will read like a lead opinion despite not being the majority opinion; usually this means that it only barely failed in its attempt to get a majority of subscribers. An example of how difficult this gets is shown by the opinion of Justice Powell in Bakke, who was delivering the “decision” of the Court, but who wrote all by himself because he couldn’t get a majority to agree with everything he was writing.
Just a very minor point to add to this excellent reply: Bakke illustrates a truly bizarre circumstance, in which by and large people follow the opinion of a lone justice. If you follow the link, you’ll notice that Bakke resulted in an evenly divided court - four justices thought that pretty much any system of “affirmative action” was constitutional, and four thought that any system unconstitutional. Justice Powell split the difference: he thought “affirmative action” could be OK provided it wasn’t the simple quota system that the University of California had used. Thus, he became the “majority of one,” and the courts have been wrangling ever since.