In cases in which the judges of a multijudge court are divided as to the decision, it is customary for those in the minority to file a dissenting opinion. This practice is followed in the Supreme Court of the United States. In recent years, dissenting opinions have been filed in as many as seventy percent of all cases decided by the Court. In a typical term over 150 separate dissenting opinions are filed by Justices who find themselves on the losing side.
The author of a dissenting opinion tries to explain why the Court should have decided the case differently. Often a dissenting Justice will attempt to provide the public with an interpretation of the majority opinion in order to narrow its scope or to restrict its impact. A strong dissenting opinion may go far to weaken the decision and may point the way for future litigation.
The opinion of the Court is written by a Justice on the prevailing side designated by the Chief Justice (or the senior Justice in the majority), and must reflect a consensus of the majority. Dissenters have a freer hand: they can make their point more sharply because they do not need to accommodate colleagues who might balk at aspects of their argument. Before the decision of a case is announced, the draft opinions circulate among the Justices. A well-argued dissent can induce the author of the majority opinion to modify its content, either to retain majority support, as in everson v. board of education (1947), or to respond in kind to a particularly harsh attack, as in dred scott v. sandford (1857). In an extraordinary case, the dissent may attract enough support actually to become the majority opinion.
Dissents are most common during change in the ideological composition of the Court. For a time the dissents portend an imminent revolution in the tendency of judicial thought and point to the future course of decisions. Once the revolution is perfected there follows a time when the dissents resist the new orientation and recall the old orthodoxy. Two of the Court's great dissenters were Justices john marshall harlan (1833–1911) and oliver wendell holmes, each of whom stood against the majority of his day and took positions that much later were adopted by the Court.
charles evans hughes once wrote that "a dissent in the court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day.…" Contemporaneously, harlan f. stone wrote that "dissents seldom aid in the right development of the law. They often do harm."
Dennis J. Mahoney