dissent

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Dissent

An explicit disagreement by one or more judges with the decision of the majority on a case before them.

A dissent is often accompanied by a written dissenting opinion, and the terms dissent and dissenting opinion are used interchangeably.

Dissents have several functions. In some cases, they are a simple declaration of disagreement with the majority. In others, they instruct, prod, scold, or otherwise urge the majority to consider the dissenter's point of view.

Dissents carry no precedential weight and are not relied on as authority in subsequent cases. However, attorneys and judges sometimes consult them to understand the dissenter's analysis of the majority opinion. Attorneys and judges may also cite a dissent if they agree with its reasoning and conclusion and seek support for a change in the law.

Although the majority opinion constitutes the judgment of the court, its legal weight can be diminished if a sufficient number of judges dissent. On issues that divide the courts and the country, there can be sharply divergent opinions on what the law is or should be. During the 1990s, for example, one divisive question before the U.S. Supreme Court was whether Affirmative Action programs to redress the effects of past discrimination were constitutional. In Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995), the U.S. Supreme Court held that Georgia's congressional redistricting plan, implemented to give minorities a strong voting block, constituted racial gerry-mandering and violated the equal protection clause. However, the case was not an unqualified success for those urging the rejection of affirmative action. Five justices joined in the majority block (plurality) in the case, and four justices filed dissents. With such a large minority, the dissents gained significance. Legal analysts monitor close cases such as Miller because a shift by one justice would signal a change in the law.

Dissents are a relatively recent phenomenon. Chief Justice John Marshall, who served on the Supreme Court from 1801 to 1835, urged unanimity on the Court to demonstrate that its opinions were the last word on an issue. Others believed that individual conscience should dictate a justice's opinions, without regard to unanimity. In its early years, most of the Supreme Court's decisions showed little or no dissent. During the late nineteenth century and early twentieth century, as the Court became firmly established as the law of the land, more dissents appeared. Yet, even those who dissented during this period often recognized the importance of consensus opinions. For instance, Justice oliver wendell holmes jr., a frequent and famous dissenter, wrote a scathing dissent in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), but not before he expressed his reluctance to do so: "I regret sincerely that I am unable to agree with the judgment in this case, and that I think it is my duty to express my dissent. "

By the 1960s and 1970s, dissents were an accepted part of the Court's business, perhaps reflecting the fractious political and social climate of those years. One frequent dissenter during the mid-twentieth century was Justice william o. douglas. During his thirty-six years on the Court, from 1939 to 1975, Douglas wrote 524 opinions of the Court, 154 concurring opinions, and an astounding 486 dissenting opinions. In addition, he dissented without opinion in 309 cases.

Justice benjamin n. cardozo, of the Supreme Court, defended those who disagree with the majority, writing that the dissenter is "the gladiator making a last stand against the lions." A few justices raised their roles as dissenters to an art form. Justices william j. brennan jr. and Thurgood Marshall displayed particular courage in opposition to the majority. During their long tenure on the Court, Brennan and Marshall were unwavering in their conviction that the death penalty violates the Constitution. By doggedly and relentlessly repeating their dissent, they sought to win others to their view that the law on Capital Punishment should be changed.

Together as well as separately, Brennan and Marshall wrote scores of dissents in death penalty cases. In so doing, they opposed clear precedent that supported the legality of capital punishment. However, both were convinced that they were justified in their continued opposition. Brennan felt that the intrinsic morality of the Eighth Amendment superseded any right of individual states to impose capital punishment. He wrote, "It would effectively write the [Cruel and Unusual Punishment] clause out of the Bill of Rights were we to permit legislatures to police themselves by having the last word on the scope of the protection that the clause is intended to secure against their own overreaching." Marshall's opposition was less philosophical and more practical. He repeatedly pointed out that the application of the death penalty was Arbitrary and unfair, and affected minorities disproportionately. He felt a responsibility to continue bringing this issue before the public and believed that most people, if sufficiently informed about all its ramifications, would find capital punishment "shocking, unjust, and unacceptable" (Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 [1972] [Marshall, J., dissenting]).

Some legal analysts believe that dissents are an important part of the system of checks and balances. Justice charles e. hughes—who served on the Court from 1910 to 1916, left the bench to run for president, and then returned to the Court as chief justice from 1930 to 1941—wrote, "A dissent … is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."

Further readings

Mello, Michael. 1995."Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment." Florida State University Law Review 22 (winter).

Cross-references

Court Opinion.

dissent

n. 1) the opinion of a judge of a court of appeals, including the U. S. Supreme Court, which disagrees with the majority opinion. Sometimes a dissent may eventually prevail as the law or society evolves. Prime examples include the many dissenting opinions of Oliver Wendell Holmes, Associate Justice of the U. S. Supreme Court (1902-1932) which were widely quoted and often formed the basis for later majority decisions. 2) stated disagreement with prevailing thought.

dissent

(Difference of opinion), noun apostasy, caviling, challenge, clash, confirmed opposition, conflict, conflict of opinion, contraposition, demur, disaccord, disagreement, discord, discordance, disharmony, disparity, dissensio, dissension, dissentience, dissidence, dissonance, divergence, diversity of opinion, expostulation, failure to agree, friction, lack of harmony, nonagreement, noncompliance, objection, oppositeness, opposition, schism, unconformity, variance

dissent

(Nonconcurrence), noun contrariety, disapproval, disavowal, disclaimer, discontent, dissatisfaction, dissension, dissentient voice, disunity, nonassent, nonconformity, nonconsent, objection, opposition, repudiation, variance
Associated concepts: dissenting opinion, dissenting vote

dissent

(Differ in opinion), verb argue, be at variance, be contrary, be of contrary sentiment, bicker, clash, collide, conflict, confute, contradict, differ, differ in sentiment, disagree in opinion, dispute, dissentire, dissidere, not agree, oppose, quarrel, take exception, take issue with
Associated concepts: dissenting fiduciary, dissenting stockkolders

dissent

(Withhold assent), verb be unwilling, challenge, decline, decline to agree, defy, demur, disallow, negate, negative, nonconsent, not accept, not approve, not consider, not defend, not hold with, object, oppose, prohibit, protest, raise objections, raise one's voice against, rebuff, refuse, refuse assent, refuse to admit, reject, repudiate, repulse, resist, spurn
Associated concepts: dissent from the majority opinion
See also: argument, bicker, challenge, collide, conflict, contend, contention, contest, contradict, contradiction, contravention, debate, demonstrate, demur, denial, deny, differ, difference, disaccord, disaffirm, disagree, disagreement, disallow, disapprobation, disapproval, disavow, discord, disown, dispute, dissatisfaction, dissension, dissidence, except, exception, faction, gainsay, impugnation, incompatibility, negation, nonconformity, object, objection, oppose, opposition, oppugn, outcry, protest, refuse, reject, rejection, reluctance, renounce, repudiate, repudiation, resist, schism, secede, strife, variance, vary

dissent

the voicing of a minority opinion in announcing the decision on a case at law or the dissenting judgment itself This is an important part of the common law tradition. The dissent may commend itself to the next most senior appellate court either in the case itself or perhaps many years later when the legal issue is once again being considered.

DISSENT, contracts. A disagreement to something which has been done. It is express or implied.
     2. The law presumes that every person to whom a conveyance has been made has given his assent to it, because it is supposed to be for his benefit. To rebut the presumption, his dissent must be expressed. Vide 4 Mason, R. 206; 11 Wheat. R. 78; 1 Binn. R. 502; 2 Binn. R. 174; 6 Binn. R. 338; 12 Mass. R. 456; 17 Mass. R. 552; 3 John. Ch. R. 261; 4 John. Ch. R. 136, 529; and dissent, and the authorities there cited.

References in periodicals archive ?
9) By this Lief means that Holmes dissented neither often nor alone.
23) Judge Pleus then dissented, complaining that panels should not flip on the merits on rehearing when nothing new had been added.
Justices Marshall, Breyer, Douglas and Brennan dissented.
How has it happened in a church where the hierarchy has spent the last two decades clarifying and reiterating its position on a wide range of disputed questions, issuing a universal catechism, and disciplining all sorts of folks who dissented from or questioned the authority of official teachings?
Dissenting opinions: Judge Ruwe, joined by Chief Judge Cohen, dissented.
While Chief Justice Shirley Abrahamson and Justice William Bablitch dissented from the Jackson ruling, they were surprisingly brief in their explanation.
While all of the judges made a strong case for the necessity of MCIs to induce improvements in rental property and to provide an adequate return on investment, two of the five New York State Appellate Division judges dissented on the provision for a retroactive increase.
Some of the uncertainty about the ultimate effect of the decision resulted because two justices in the six-member majority dissented on some aspects of die ruling.
Perhaps if the dissenting Justices were focused on the value created by the extended deliberative process, and not merely on trying to serve strategic ends, they may have dissented more robustly.
49) Rehearing was ultimately denied and Chief Judge Jacobs dissented from the order denying the rehearing en banc.
America dissented from the papal encyclical Humanae vitae in 1968 and ever since the Jesuit editors have taken their distance from the Vatican, during the 1980s especially in the area of bioethics.
She and board member Joan Dunn, who also dissented, had asked for a continued discussion on the topic, but the request was denied.