The late Second Circuit Judge William Hughes Mulligan reportedly remarked that a "primary purpose of a dissent is, of course, to annoy the majority." See John D. Freerick, Remarks Delivered on the Occasion of the Presentation of the Fordham-Stein Award to the Honorable William Hughes Mulligan, 59 Fordham L. Rev. 479, 483 (1991). "Sour grapes" aside, what else motivates appellate judges to write dissenting opinions?
First and foremost, a dissenting opinion memorializes the reasons for the dissenter’s disagreement with the majority opinion. The source of the disagreement may rest on additional facts or relevant law omitted from the majority opinion, or both. Relatedly, a dissent may prompt the majority to clarify its opinion and possibly limit its scope to the particular facts of the case. As Justice Ruth Bader Ginsburg observed, "On the utility of dissenting opinions, I will mention first their in-house impact. My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation." See Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minnesota L. Rev. 1, 3 (2010). "Vigorous written debate of the issues in a separate appellate opinion also can serve to improve the majority’s final work product by forcing the prevailing side to deal with (or to ignore at its peril) the toughest objections that can be raised to its position as urged by the losing side and/or by the dissenting opinion." Robert G. Flanders Jr., The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents are Valuable, 4 Roger Williams Univ. L. Rev. 400, 408 (1999).
A persuasive dissenting opinion may serve as the predicate for a different outcome in a future case involving the same issue. "A further benefit of writing separate opinions is that they provide competition for the majority opinion in its race for acceptance in the marketplace of ideas." Flanders, op. cit., p. 407. Keeping in mind that "stare decisis has never been treated as an inexorable command," see Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1405 (2020), the traditional considerations in deciding whether to revisit a precedent include "the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision." See id. A dissent that foreshadows these considerations may precipitate a future change in the law.
An oft-cited example is Justice John Marshall Harlan’s forceful dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), in which the majority upheld the constitutionality of racial segregation under the "separate but equal" doctrine that would stand for the next six decades. In his dissent, Justice Harlan compellingly argued that "[t]he arbitrary separation of citizens on the basis of race * * * is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds." Id. at 562. In 1954, in Brown v. Board of Education, 347 U.S. 483, the Supreme Court rejected the Plessy majority’s reasoning. Tracking the rationale of Justice Harlan’s dissent in Plessy, the court concluded, on equal protection grounds, that "in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal." Id. at 495.
Occasionally, a dissent will trigger corrective legislative action. For example, in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), which involved the application of the limitations period in Title VII disparate-treatment pay cases, the Supreme Court majority dismissed the plaintiff’s claim on narrow limitations grounds. Specifically, the court held that the limitations period for presenting an equal-pay claim begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck. In a spirited dissent, Justice Ginsburg argued that the broad remedial purpose of the applicable statute was incompatible with the majority’s "cramped interpretation." See id. at 660. She challenged Congress to act: "Once again, the ball is in Congress’ court. * * * [T]he Legislature may act to correct this Court’s parsimonious reading of Title VII." Id. In 2009, Congress responded to this challenge by enacting the Lilly Ledbetter Fair Pay Act (Pub. L. 111-2, S. 181), which, among other things, significantly expanded the limitations period for wage discrimination claims. In another example, a dissenting opinion "attracted the attention of the Law Revision Commission; that body recommended clarification and, the following year, the legislature passed the necessary amendments." See Stanley H. Fuld, The Voices of Dissent, 62 Columbia L. Rev. 923, 927 (1962).
Taking Advantage of a Dissent
While it may seem counterintuitive to rely on a dissenting opinion from another case in drafting a brief or preparing for oral argument, appellate counsel can leverage a persuasive dissent in several ways.
At the outset, it goes without saying that counsel should never ignore a dissenting opinion in any case in which the majority opinion is cited as "binding precedent" by an adverse party. Dissenting opinions often present a substantially more detailed recitation of the underlying facts than the majority opinion. Dissents also frequently point out relevant law omitted from the majority opinion. In this manner, the dissenter seeks to show that the majority opinion overlooked critical facts or misapprehended the relevant law. Of course, if the additional facts recited in the dissenting opinion are materially different from those in the case on appeal, or the majority opinion omits arguably relevant law, then the purported "binding precedent" is readily distinguishable.
As noted, a dissenting opinion may serve as the predicate for a different outcome in a future case involving the same issue. The goal is to cast the majority opinion as an outlier. A well-reasoned dissent may provide a launching pad for revisiting a precedent by effectively critiquing the quality of the majority’s analysis, demonstrating its inconsistency with related decisions, or revealing an unsettled area of the law. Of course, it helps if the dissent more closely aligns with current judicial thinking on an issue or with changes in societal norms.
Finally, the composition of an appellate court frequently changes. The judges who comprised the majority in a prior case may have left the bench and been replaced by new judges with different judicial outlooks. Better yet, the dissenter may still be on the bench, and if he or she sits on the panel of the subsequent case on appeal, may be able to garner enough support to transform the dissent into the majority. Understanding and capitalizing on this dynamic is crucial in brief-writing and oral argument.
Dissents, of course, have no precedential effect. But if creatively used, they can lessen the impact of an adverse authority and enhance a party’s chances of success.
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.