In a recent thread, the case of Coyle v. Oklahoma came up. I discovered that while there were two dissenting justices, the famous Oliver Wendell Holmes, Jr, and the barely noted Justice Joseph McKenna, that no dissenting opinion was written.
Does this still happen, if so in what situations, and if not when did the practice stop?
Dissenting votes with no opinion were the rule and not the exception for much of the history of the Court. You occasionally see things like “MR. JUSTICE McREYNOLDS does not agree. He is of opinion that the court below reached the right conclusion and its judgment ought to be affirmed.” from US v. Curtiss-Wright Export Corp., 299 U.S. 304, 333 (1936).
Often, a dissenting opinion isn’t necessary because the reasoning leading to the dissenting votes is discussed in the majority opinion.
So is that still a common occurrence?
Joseph Iredell, the first great dissenter on the court, rarely wrote in support of his dissenting votes. It’s fairly uncommon to see a dissent without an opinion, at least in major cases, today, because justices want to get their reasoning on record, both as a matter of ego, and because today’s dissent may become the precedent for tomorrow’s majority opinion. (Obviously, “dissent without an opinion” does not refer to instances where Justice A writes a dissent in which he is joined by Justices B and C, as against the majority opinion of Justice D, in which the other five justices joined. There are a lot of cases where one of two to four dissenters writes for the group.)