How the Supreme Court informs lawyers, judges and the general public about its decisions and disagreements

When the U.S. Supreme Court issues opinions, the nine justices can have issued a 6-3 or 5-4 decision. It may additionally be that certain justices issued concurring opinions, or that there have been multiple dissenting opinions.

In these concurrences and dissents, the Supreme Court justices express their disagreement with the bulk opinion.

Consider the recent case of Arizona vs. Navajo Nationexamining the Navajo Nation's water rights on the Colorado River. The court ruled 5-4 in Arizona's favor, with five justices agreeing with the State of Arizona's arguments and 4 justices agreeing with the Navajo Nation's arguments.

The opinion issued by the five justices is the choice that serves as precedent for other courts. It known as the “majority opinion” or just “the opinion.”

The opinion issued by the opposite 4 justices known as a “dissenting opinion” or just a “dissenting opinion.” Just as the bulk opinion sets out its reasoning and the style during which it reached its conclusion, so too will the dissenting opinion. Lower courts are required to follow the bulk opinion; lower courts will not be required to follow the dissenting opinion.

Why give a dissenting opinion if the courts will not be required to follow it? Even in the event that they will not be the official basis for a court's decision, dissenting opinions have a function and a purpose.

For the record

Justices write dissenting opinions for historical reasons, for his or her personal status, or on principle. They want to clarify publicly why they think the bulk decision is mistaken.

In the dissent, the justices may undergo the bulk opinion step-by-step to focus on errors within the logic, interpretation, or decision of the case. The decision is the court's official answer to the problem it’s asked to determine.

For an example of this step-by-step approach, see the records of the case that struck down federal protections for abortion rights. Dobbs vs Jackson – Women’s HealthIn this case, the opposing opinion wrote detailed responses to the bulk opinion.

Develop the legal argument

A dissenting opinion may help other judges present their arguments.

Before the court issues an opinion, The judges meet in person to debate their views and their preliminary decisions on the end result of the case.

Based on this conference, the justices have an idea of ​​what the bulk opinion will seem like and who will agree with it. The chief justice or probably the most senior justice then assigns a justice to put in writing the bulk opinion. The same process is followed when a justice is assigned to put in writing the dissenting opinion.

These draft opinions are then distributed to all judges, who provide comments and feedback on points they imagine needs to be considered. This review process helps judges determine whether to hitch an opinion or write their very own opinion in the event that they imagine a specific point must be addressed.

The value of this process lies in refining the arguments within the opinions. The late Justice Ruth Bader Ginsburg said in a speech in 2009 that “there is nothing like a striking dissenting opinion to induce the author of the majority opinion to clarify and refine his original opinion.”

Dissidents as orientation

Sometimes the reasoning behind a dissent is used to regulate future laws. It can function guidance for lawmakers or form the premise for future cases that seek to eventually overturn that first case.

In Plessy v. Fergusona case from 1896 Challenging a racial segregation law in LouisianaThe U.S. Supreme Court ruled that racial segregation was legal so long as separate but equal facilities and services were available.

There was just one dissenting opinion on this case, that of Justice John Marshall Harlan. In this dissenting opinion, Justice Harlan said: argued that racial segregation was unconstitutional: “[t]The arbitrary segregation of residents on the premise of race in public streets is an indication of servitude which is on no account compatible with civil liberty and equality before the law enshrined within the Constitution. It can’t be justified by any legal basis.”

Harlan’s dissent laid the inspiration for the argument that the Court eventually accepted 60 years later, in Brown v. Board of Educationwhich overturned the Plessy decision and declared racial segregation unconstitutional.

Although Harlan will not be explicitly mentioned within the Brown decision, the reasoning and arguments he presented in his dissenting opinion in Plessy formed the premise for subsequent cases testing the boundaries of the separate but equal doctrine and ultimately led the Court to overturn the doctrine in Brown.

The dissent will not be limited to at least one opinion. This implies that in a 5-4 decision, there could theoretically be 4 different dissents.

What about matches?

At least five judges must agree and sign the bulk decision. The easiest method is for all five judges to agree on a single opinion.

However, a majority judge should disagree with the bulk opinion. For example, a judge may write a supplementary opinion clarifying the extent to which she or he agrees with the bulk decision. Or a judge may agree with the bulk decision but not with the reasoning and due to this fact determine to put in writing a separate opinion.

These dissenting opinions from those that agree with the bulk decision are called “concurrences.” They serve similar purposes to dissents in that they record a judge's opinion on a problem. That opinion may be utilized in similar cases in the longer term.

When there are concurrences, the mathematics can get complicated. In the Navajo Water case, 4 justices signed the bulk opinion, while the fifth justice wrote a concurrence statement. So 4 justices in the bulk plus one writing a concurrence statement equals five justices agreeing on a call.

In addition, judges may agree with the bulk opinion in addition to a concurring opinion.

In Griswold v. ConnecticutIn a 1965 case involving privacy, seven justices agreed that a right to privacy was constitutional, but disagreed about where that right was based. Five justices signed the bulk opinion. Three of those five justices also signed a dissenting concurring opinion. Two other justices didn’t sign the bulk opinion; as an alternative, they each wrote their very own dissenting opinion, agreeing with but not joining the bulk's conclusion.

That's a complete of 4 opinions, all of which agree that there’s a constitutional right to privacy, but disagree about where within the Constitution that right needs to be situated.

What should a lower court do with an opinion just like the one in Griswold? While lower courts must still follow the bulk opinion, they might decide to adopt the reasoning of a concurring opinion.

Legal discussions

Concurring and dissenting opinions are a conversation with the bulk opinion on the legal issues within the case, so listen the subsequent time you hear a couple of concurring or dissenting opinion.

At the very least, you possibly can learn the way a specific judge views the problem at hand. In addition, you might gain insight into how the law will evolve in the longer term.