The Value of Dissent on the Supreme Court

By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

In the legal community, the role and importance of dissenting opinions in Supreme Court decisions has been deeply controversial and often questioned. For the first twenty years after the establishment of the US Supreme Court, justices initially each issued independent opinions. Since there existed no prevailing opinion, confusion regarding the judgment of the Court abound, despite there being only six justices serving at the time. It was only when John Marshall became Chief Justice in 1801 that he changed the system to that which we have today: a system in which the Court issues an official, majority decision, with each justice given the option of writing his or her own dissent or concurrence. [1]

Since then, dissenting opinions have proven to be crucial to the integrity of the Supreme Court and to its proper functioning. The most obvious reason for allowing justices to publish their dissenting opinions is that the legacy each justice leaves behind is his or her history of signing on to Court decisions. If the Supreme Court operated under a system that did not allow for the formally documented expression of dissenting opinions, justices would then be forced to sign on to judgments with which they disagreed. It is both cumbersome and impractical to hope for a unanimous decision on each case, and furthermore unethical to compel any justice to sign a decision which he or she does not support. Justice Felix Frankfurter, who served from 1939 to 1962, defined the sum of a justice’s decisions as “the thought and action of a lifetime.” [2] Indeed, this legacy cannot and should not be swayed to achieve unanimity.

Kevin Stack, a professor of law at Vanderbilt University, advanced the idea of a deliberative democracy, which he defined as “the basic idea … that the architects of the Constitution chartered government through representatives and critically through an assembly of representatives, so that the representatives would deliberate together toward a determination of the common good.” [3] The central idea behind his theory is that the Founding Fathers wrote the American Constitution to allow for a democracy shaped around ongoing, explicit deliberation about the state of the country and the changes that should be enacted. The nature of dissents in Supreme Court decisions embodies Stack’s ideal of a deliberative democracy by providing the public with insight into the various expert legal positions that surround a specific issue, and laying out the deliberations that would otherwise occur entirely behind the closed doors of Supreme Court chambers. [4]

Furthermore, justices are not elected, but nominated and confirmed by elected officials. As such, they are accountable to the people, and in order to be so, they must be truthful to the people. Justices must be able to state what each of their opinions are on a case if they choose, regardless of how they vote during the deliberations in chambers. Justice Joseph Story, an associate justice of the Court from 1811-1845, argued, “upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the Court and the reasons of his dissent.” [5] Although many argue that dissenting opinions serve to weaken the authority of the court or to confuse the actual rulings, dissenting opinions in Supreme Court cases not only help the Court fulfill its responsibility in a “deliberative democracy,” but it also allows it to play its role as an advocate for minority groups.

However, others believe that since it is the majority decision that bears the most significant impact upon the rulings of lower courts, dissenting opinions are ostensibly unnecessary, seemingly standing only to increase bickering between the justices, rather than imparting any actual value to the issue at hand. One critique of a system that allows for dissenting opinions is that it runs the risk of confusing lower courts with the diluted judgments of the Supreme Court. This confusion may be created when writers of minority decisions infamously distort the ruling of the majority into a straw man argument in order to bolster their own cases. [6] On the other hand, however, supporters of this system argue that the general public and the judges of lower courts need only read the majority decision to know what the actual judgment of the Court is, and that if they are reading the dissent, they presumably have already read the majority decision.

Other scholars worry that the dissents are merely a “confession of failure to convince the writer’s colleagues,” and as such are harmful to the public perception of the justices’ argumentative prowess. [7] However, this objection is valid only under the premise that there is a single objectively right answer for each case that the Supreme Court rules on, and that justices who fail to agree with the majority decision are somehow inferior.

The presence of differing opinions in Supreme Court cases is a controversial topic within jurisprudential thought. Many scholars believe that it not only risks the authority of the Court but also weakens the decisions of the justices. These opposing opinions, however, are at the core of the reasoned discussion and reevaluation of national principles and help preserve the integrity of the Court. While there have been several proponents of doing away with the exercise of written dissents in each case, it is nonetheless a tradition that remains since 1801, and one that does not seem to be in any danger of disappearing.


[1] “John Marshall - Supreme Court | Laws.com.” Accessed October 4, 2015. http://supreme-court.laws.com/john-marshall.
[2] “Felix Frankfurter.” TheFreeDictionary.com. Accessed October 4, 2015. http://legal-dictionary.thefreedictionary.com/Felix+Frankfurter.
[3] Bennett, Robert William. Talking It Through: Puzzles of American Democracy. Cornell University Press, 2003.
[4] Ibid.
[5] Jackson, Percival E. Dissent in the Supreme Court: A Chronology. Norman: The University of Oklahoma Press, 1969: 17.
[6] Steven A. Patterson. “Dissent in American Courts,” The Journal of Politics 43, 2 (1981): 426-427.
[7] Hasian, Marouf. “Dangerous Supplements, Inventive Dissent, and Military Critiques of the Bush Administration’s Unitary Executive Theories.” Presidential Studies Quarterly 37, no. 4 (December 1, 2007): 693.
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