As a matter of law the majority decision of the SCOTUS becomes the law of the land.
So why write a minority decision? Does it send notice that if someday the court’s character changes that maybe someone could have a run at that topic again?
Or is it just a chance for those in the minority to rant a little bit about the stupidity of the majority decision?
Put another way is there any legal weight to a minority decision that can be used elsewhere in the law?
As well as being an argument in favour of a change in the direction of the law, they can clarify what the ratio decidendi of the case was.
dissents are the seeds of future opinions.
sometimes a dissent helps to clarify the public discussion, or the discussion in the court itself. if the arguments advanced in a dissent are compelling, it may gradually sway members of the Court to change their minds, even without changes to the composition of the Court.
for example, the Canadian Supreme Court was badly divided in the mid-90s on the interpretation of our Charter’s equality clause. in 1995, the Court delivered three judgments on the issue that lacked any consensus. what was clear was that one judge, Justice L’Heureux-Dubé, was all off on her own - none of the other judges signed on to her lone dissents in the three cases.
four years later, in a landmark case, the Court reached unanimity on its interpretation of the equality clause, and much of the analysis borrowed heavily from the ideas that L’Heureux-Dubé had advanced in the earlier cases. her dissents helped to persuade her colleagues.
Giles’ point is also spot-on. The Judicial Committee of the Privy Council was the highest court in the British Empire for appeals from outside the U.K. Its practice was only to render a single decision - no dissents. One criticism of the Privy Council decisions was that they were too broad and general. Having a dissent forces the majority to be clearer about its decision, in response to the dissent.
Judge Blackmun’s dissent in Bowers v. Hardwick was the basis of the majority opinion in Lawrence v. Texas.
I think we should have a judge The Happy Doobie on the U.S. Supreme Court too.
Are you listening Mr. Obama?
next time he has one of those electronic town halls on his White House web-site, you could organize an e-campaign!