A dissenting opinion (or dissent) is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. When not necessarily referring to a legal decision, this can also be referred to as a minority report.
Dissenting opinions are normally written at the same time as the majority opinion and any concurring opinions, and are also delivered and published at the same time. A dissenting opinion does not create binding precedent nor does it become a part of case law. However, they can sometimes be cited as a form of persuasive authority in subsequent cases when arguing that the court's holding should be limited or overturned. In some cases, a previous dissent is used to spur a change in the law, and a later case may result in a majority opinion adopting a particular rule of law formerly advocated in dissent. As with concurring opinions, the difference in opinion between dissents and majority opinions can often illuminate the precise holding of the majority opinion.
The dissent may disagree with the majority for any number of reasons: a different interpretation of the existing case law, the application of different principles, or a different interpretation of the facts.
Types of dissenting opinions
A dissent in part is a dissenting opinion that disagrees selectively—specifically, with one part of the majority holding. In decisions that require holdings with multiple parts due to multiple legal claims or consolidated cases, judges may write an opinion "concurring in part and dissenting in part".
Dissenting opinions by region
In some courts, such as the Supreme Court of the United States, the majority opinion may be broken down into numbered or lettered parts, which allows those judges "dissenting in part" to easily identify which parts they join with the majority, and which sections they do not.
In the mid-20th century, it became customary for the members of the U.S. Supreme Court and many state supreme courts to end their dissenting opinions with a variation on the phrase "I respectfully dissent." In dissents filed in high-profile cases, that phrase can sometimes convey a sarcastic tone, depending upon the context.
- Tushnet, Mark, ed. (2008). I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Malaysia: Beacon Press. ISBN 978-0-8070-0036-6.