Perhaps every appellate practitioner can relate to the experience of finding a perfect on-point quote while conducting research only to discover the quote is from a dissenting opinion. But don’t disregard that quote just yet. As this article will explore, dissenting opinions are a useful tool for appellate lawyers, and mastering the art of incorporating dissenting opinions into your briefs and oral arguments is a worthwhile endeavor. After all, judges put great effort into crafting dissenting opinions, so those opinions should not be disregarded in appellate advocacy.
A dissenting opinion represents what one—or often more than one—judge thinks the law should mean, but what is the purpose of a dissent? The late Second Circuit Judge William Hughes Mulligan is said to have remarked that a “primary purpose of a dissent is, of course, to annoy the majority.”[1] But within a dissenting opinion’s critical language of the majority are helpful insights that can improve your advocacy. Using these insights to your advantage may indeed have a meaningful impact on how the court rules in your case.
While a majority opinion settles disputes as to how the law should be applied to a particular set of facts, dissenting opinions highlight potential flaws in the majority’s reasoning and unsettled questions that remain in the wake of the court’s decision. As one commentator explains, “[m]ajority opinions are exercises in power; dissents are appeals to our better judgment.”[2] Herein lies the advocacy value of a dissenting opinion: the ability to persuade the court that it should move away from—or even abrogate—a prior decision. This article suggests three ways that dissenting opinions can aid your brief-writing and oral argument preparation: (1) dissents can help frame your case; (2) dissents can serve as a gap-filler, coloring in facts and law the majority omitted; and (3) dissents can deepen your understanding of varying views within a court. Finally, there is an important ethical consideration that all lawyers must remember when citing to a dissenting opinion.
II. Framing Your Case
Framing your case in its proper legal and factual context gives the court a clear understanding of what law should guide the court’s decision. Part of framing your case often entails confronting adverse authority, which may lead to an argument that the court should refine an area of law or even reverse binding precedent. By lodging thoughtful critiques of majority opinions, dissents highlight ambiguities in the law and do much of the legwork in moving a court to abrogate a prior decision. Because a fierce dissent may act as a barometer of what is in the offing, a devoted student of dissents will be better equipped to bend the arc of a court’s jurisprudence in her client’s favor.
Indeed, at critical moments in our nation’s history, dissenting opinions have charted the course away from ill-advised decisions. Perhaps the most famous example is Justice John Marshall Harlan’s dissent in Plessy v. Ferguson,[3] which undoubtedly helped lay the groundwork for the Court’s eventual reversal of Plessy in Brown v. Board of Education.[4] Another example is Justice Brandeis’s dissent in Olmstead v. United States,[5] which paved the way for significant shifts in the Court’s jurisprudence in the right-to-privacy context. In his dissent in Olmstead, Justice Brandies criticized the Court’s decision, explaining that “to declare that the Government may commit crimes in order to secure the conviction of a private criminal . . . would bring terrible retribution.”[6] Nearly forty years later, the Court, with a nod to the disagreement among the justices in Olmstead, reversed course in Katz v. United States.[7]
Dissents also aid in framing a case by revealing unsettled areas in the law. Specifically, dissents often point out inconsistencies in a court’s analysis and provide a basis for arguing that an area of the law merits additional attention. As an example, Justice Reed, in Sacher v. Association of the Bar of City of New York,[8] explained the reason for his dissent: “The purpose of this dissent is to show that in reversing the disbarment of Mr. Sacher this Court departs from its previous practice of leaving exclusions from their bars to the district courts except when there has been an abuse of discretion.”[9] Similarly, in Bush v. Lone Oak Club,[10] a recent case from the Texas Supreme Court, Justice Green argued that the majority opinion “charts a new path of Texas jurisprudence that departs from the long-standing distinction in Texas law between submerged land above the line of mean high tide and submerged land below the line of mean high tide.”[11]
Drawing the court’s attention to the fact that prior judges have wrestled with a similar question and emerged with divergent views gives the majority author in your case a hook on which to hang his hat if he decides to move away from prior decisions. As some commentators have suggested, “[l]ikeminded future litigants can interpret legal rationales in dissenting opinions as information about how they might reconstruct the case facts and legal arguments to be more likely to win on the merits in the future.”[12] Using a dissent to invite the court to clear up confusion from prior decisions, or to abandon an ill-advised decision altogether, can reinforce your appellate arguments.
III. Filling the Gap
A second way to use a dissent in appellate briefs and oral arguments is as a gap-filler. An appellate court’s majority opinion generally follows a well-known structure: an introduction, an explanation of the background and facts, the relevant standard of review, the court’s application of the law to the facts, and a conclusion. The author of the court’s majority opinion decides how to cast the facts and the law guiding the analysis and conclusion. Frequently, dissenting judges expend significant ink to point out facts the majority glossed over, or relevant law the majority omitted from its analysis. A careful reading of a dissent may uncover additional facts or relevant law that will prove useful in ameliorating adverse authority.
A dissenting opinion often contains a detailed account of the law that should have guided the majority’s decision, or law that the majority, in the dissent’s view, applied incorrectly. One example is Justice Frankfurter’s dissent in United States v. Monia.[13] The issue in Monia was whether a subpoenaed witness who does not claim his Fifth Amendment privilege while testifying before a grand jury retains immunity under the Sherman Act.[14] In a succinct, roughly 1,600-word opinion, the Court concluded that such a witness does retain immunity under the Sherman Act.[15]
In his over 5,000-word dissent, Justice Frankfurter went to great lengths to explain the historical context of the statutory and case law that should have undergirded the majority’s decision.[16] In Justice Frankfurter’s view, the majority failed to consider the entire legal landscape in deciding the case.[17] While some judges have suggested the limited utility of a dissent,[18] Justice Frankfurter’s dissent in Monia left an impact. Nearly twenty years after Monia was decided, Justice Black, dissenting in United States v. Welden,[19] highlighted Justice Frankfurter’s comprehensive approach to filling the majority’s gaps in Monia.[20]
A dissent may also illuminate facts from the record that the majority omitted from its analysis. Such omissions sometimes prompt a dissenting judge to call out the court for ignoring facts that should have weighed on the court’s decision. One example is Judge Bataillon’s dissent in Wexler v. Jensen Pharmaceuticals.[21] The issue in Wexler was whether a pharmaceutical company employee was terminated on the basis of his age or because of his performance as an employee.[22] The majority affirmed the trial court’s grant of summary judgment in the pharmaceutical company’s favor.[23] Judge Bataillon argued in his dissent that the majority ignored facts that could have explained the employee’s declining sales, other than those cited by the company.[24] Judge Bataillon didn’t mince words in his critique of the majority’s attention to the facts: “The majority’s analysis gives a selective and incomplete picture of the record in this case.”[25]
IV. Understanding the Court
Finally, dissenting opinions provide helpful insights into varying views within an appellate court. Many dissents begin as the court’s proposed majority opinion. After a case is submitted, a judge on an appellate panel or a high court circulates a draft majority opinion laying out how that judge believes the case should be decided. If that judge fails to garner enough support for her draft majority opinion, what was once a majority opinion becomes a dissent.
In the motions for rehearing context, dissenting opinions are particularly useful in appealing to judges’ divergent views. In United States v. Erwin,[26] Judge Ryan stated: “the majority opinion fails to identify the correct issue in this case, omits facts essential to a correct resolution of the real issue, and announces a rule of law wholly foreign, until today, to established Fourth Amendment jurisprudence.”[27] Indeed, Judge Ryan’s view ultimately carried the day when the Sixth Circuit granted rehearing en banc, reversed its prior decision, and issued a new en banc majority opinion authored by Judge Ryan.[28]
V. Conclusion
Dissenting opinions provide a creative opportunity to strengthen your advocacy, and appellate lawyers should thus devote ample consideration of a dissenting judge’s arguments. But all lawyers must be mindful of the duty of candor to the tribunal when citing dissents.[29] Dissents are, of course, not binding authority. Accordingly, when citing dissents in briefs and during oral argument, take care to always include a notation informing the court that the citation arises from a dissenting opinion.[30] Failure to include such a notation could make it appear that you are being less than forthcoming about the cited authority’s weight. At best, this greatly undermines your credibility with the court and at worst could result in disciplinary action in many jurisdictions.
[1] John D. Feerick, Remarks Delivered on the Occasion of the Presentation of the Fordhamstein Award to the Hon. William Hughes Mulligan, 59 Fordham L. Rev. 479, 483 (1991).
[3]136 U.S. 537 (1896), rev’d Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954).
[5] 277 U.S. 438 (1928).
[6] Id. at 469 (Brandeis, J., dissenting).
[7] 389 U.S. 347, 353 (1967) (“Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested.”).
[8] 347 U.S. 388 (1954).
[9] Id. at 390 (Reed, J., dissenting).
[10] 601 S.W.3d 639 (Tex. 2020).
[11] Id. at 658 (Green, J., dissenting).
[12] Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J. 183, 201 (2009).
[13] 317 U.S. 424, 431 (1943).
[17] See id. at 413 (Frankfurter, J., dissenting) (“This question cannot be answered by closing our eyes to everything except the naked words of the Act of June 30, 1906.”).
[18] Stark v. Holtzclaw, 105 So. 330, 334 (Fla. 1925) (Ellis, J., dissenting) (“I realize that in many cases the serviceability of a dissenting opinion is extremely doubtful, if, indeed, it does not make for harmful results which may be expected to flow from differences of opinion on the part of the members of a court of last resort upon a rule of law by which the responsibilities and liabilities of citizens are to be measured in their relations to one another.”).
[20] Id. at 108 (Black, J., dissenting).
[21] 739 F. App’x 911 (9th Cir. 2018).
[24] Id. at 917 (Bataillon, J., dissenting) (“The majority also ignores facts that show the decline in sales could have been due to factors other than Wexler’s alleged shortcomings in failing to adapt to the new sales model.”).
[25] Id. at 914 (Bataillon, J., dissenting). Perhaps Judge Bataillon’s criticism was amplified because he is a trial judge who sat by designation on the appellate panel in Wexler.
[26] 71 F.3d 218, 223 (6th Cir. 1995), rev’d 155 F.3d 818 (6th Cir. 1998).
[27] Id. at 223 (Ryan, J., dissenting).
[28] Erwin, 155 F.3d at 818.
[29] Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n 2018).
[30] Westlaw appears to have picked up on this hazard, and its new Westlaw Edge platform highlights dissenting opinions in red.
I. Introduction
Perhaps every appellate practitioner can relate to the experience of finding a perfect on-point quote while conducting research only to discover the quote is from a dissenting opinion. But don’t disregard that quote just yet. As this article will explore, dissenting opinions are a useful tool for appellate lawyers, and mastering the art of incorporating dissenting opinions into your briefs and oral arguments is a worthwhile endeavor. After all, judges put great effort into crafting dissenting opinions, so those opinions should not be disregarded in appellate advocacy.
A dissenting opinion represents what one—or often more than one—judge thinks the law should mean, but what is the purpose of a dissent? The late Second Circuit Judge William Hughes Mulligan is said to have remarked that a “primary purpose of a dissent is, of course, to annoy the majority.”[1] But within a dissenting opinion’s critical language of the majority are helpful insights that can improve your advocacy. Using these insights to your advantage may indeed have a meaningful impact on how the court rules in your case.
While a majority opinion settles disputes as to how the law should be applied to a particular set of facts, dissenting opinions highlight potential flaws in the majority’s reasoning and unsettled questions that remain in the wake of the court’s decision. As one commentator explains, “[m]ajority opinions are exercises in power; dissents are appeals to our better judgment.”[2] Herein lies the advocacy value of a dissenting opinion: the ability to persuade the court that it should move away from—or even abrogate—a prior decision. This article suggests three ways that dissenting opinions can aid your brief-writing and oral argument preparation: (1) dissents can help frame your case; (2) dissents can serve as a gap-filler, coloring in facts and law the majority omitted; and (3) dissents can deepen your understanding of varying views within a court. Finally, there is an important ethical consideration that all lawyers must remember when citing to a dissenting opinion.
II. Framing Your Case
Framing your case in its proper legal and factual context gives the court a clear understanding of what law should guide the court’s decision. Part of framing your case often entails confronting adverse authority, which may lead to an argument that the court should refine an area of law or even reverse binding precedent. By lodging thoughtful critiques of majority opinions, dissents highlight ambiguities in the law and do much of the legwork in moving a court to abrogate a prior decision. Because a fierce dissent may act as a barometer of what is in the offing, a devoted student of dissents will be better equipped to bend the arc of a court’s jurisprudence in her client’s favor.
Indeed, at critical moments in our nation’s history, dissenting opinions have charted the course away from ill-advised decisions. Perhaps the most famous example is Justice John Marshall Harlan’s dissent in Plessy v. Ferguson,[3] which undoubtedly helped lay the groundwork for the Court’s eventual reversal of Plessy in Brown v. Board of Education.[4] Another example is Justice Brandeis’s dissent in Olmstead v. United States,[5] which paved the way for significant shifts in the Court’s jurisprudence in the right-to-privacy context. In his dissent in Olmstead, Justice Brandies criticized the Court’s decision, explaining that “to declare that the Government may commit crimes in order to secure the conviction of a private criminal . . . would bring terrible retribution.”[6] Nearly forty years later, the Court, with a nod to the disagreement among the justices in Olmstead, reversed course in Katz v. United States.[7]
Dissents also aid in framing a case by revealing unsettled areas in the law. Specifically, dissents often point out inconsistencies in a court’s analysis and provide a basis for arguing that an area of the law merits additional attention. As an example, Justice Reed, in Sacher v. Association of the Bar of City of New York,[8] explained the reason for his dissent: “The purpose of this dissent is to show that in reversing the disbarment of Mr. Sacher this Court departs from its previous practice of leaving exclusions from their bars to the district courts except when there has been an abuse of discretion.”[9] Similarly, in Bush v. Lone Oak Club,[10] a recent case from the Texas Supreme Court, Justice Green argued that the majority opinion “charts a new path of Texas jurisprudence that departs from the long-standing distinction in Texas law between submerged land above the line of mean high tide and submerged land below the line of mean high tide.”[11]
Drawing the court’s attention to the fact that prior judges have wrestled with a similar question and emerged with divergent views gives the majority author in your case a hook on which to hang his hat if he decides to move away from prior decisions. As some commentators have suggested, “[l]ikeminded future litigants can interpret legal rationales in dissenting opinions as information about how they might reconstruct the case facts and legal arguments to be more likely to win on the merits in the future.”[12] Using a dissent to invite the court to clear up confusion from prior decisions, or to abandon an ill-advised decision altogether, can reinforce your appellate arguments.
III. Filling the Gap
A second way to use a dissent in appellate briefs and oral arguments is as a gap-filler. An appellate court’s majority opinion generally follows a well-known structure: an introduction, an explanation of the background and facts, the relevant standard of review, the court’s application of the law to the facts, and a conclusion. The author of the court’s majority opinion decides how to cast the facts and the law guiding the analysis and conclusion. Frequently, dissenting judges expend significant ink to point out facts the majority glossed over, or relevant law the majority omitted from its analysis. A careful reading of a dissent may uncover additional facts or relevant law that will prove useful in ameliorating adverse authority.
A dissenting opinion often contains a detailed account of the law that should have guided the majority’s decision, or law that the majority, in the dissent’s view, applied incorrectly. One example is Justice Frankfurter’s dissent in United States v. Monia.[13] The issue in Monia was whether a subpoenaed witness who does not claim his Fifth Amendment privilege while testifying before a grand jury retains immunity under the Sherman Act.[14] In a succinct, roughly 1,600-word opinion, the Court concluded that such a witness does retain immunity under the Sherman Act.[15]
In his over 5,000-word dissent, Justice Frankfurter went to great lengths to explain the historical context of the statutory and case law that should have undergirded the majority’s decision.[16] In Justice Frankfurter’s view, the majority failed to consider the entire legal landscape in deciding the case.[17] While some judges have suggested the limited utility of a dissent,[18] Justice Frankfurter’s dissent in Monia left an impact. Nearly twenty years after Monia was decided, Justice Black, dissenting in United States v. Welden,[19] highlighted Justice Frankfurter’s comprehensive approach to filling the majority’s gaps in Monia.[20]
A dissent may also illuminate facts from the record that the majority omitted from its analysis. Such omissions sometimes prompt a dissenting judge to call out the court for ignoring facts that should have weighed on the court’s decision. One example is Judge Bataillon’s dissent in Wexler v. Jensen Pharmaceuticals.[21] The issue in Wexler was whether a pharmaceutical company employee was terminated on the basis of his age or because of his performance as an employee.[22] The majority affirmed the trial court’s grant of summary judgment in the pharmaceutical company’s favor.[23] Judge Bataillon argued in his dissent that the majority ignored facts that could have explained the employee’s declining sales, other than those cited by the company.[24] Judge Bataillon didn’t mince words in his critique of the majority’s attention to the facts: “The majority’s analysis gives a selective and incomplete picture of the record in this case.”[25]
IV. Understanding the Court
Finally, dissenting opinions provide helpful insights into varying views within an appellate court. Many dissents begin as the court’s proposed majority opinion. After a case is submitted, a judge on an appellate panel or a high court circulates a draft majority opinion laying out how that judge believes the case should be decided. If that judge fails to garner enough support for her draft majority opinion, what was once a majority opinion becomes a dissent.
In the motions for rehearing context, dissenting opinions are particularly useful in appealing to judges’ divergent views. In United States v. Erwin,[26] Judge Ryan stated: “the majority opinion fails to identify the correct issue in this case, omits facts essential to a correct resolution of the real issue, and announces a rule of law wholly foreign, until today, to established Fourth Amendment jurisprudence.”[27] Indeed, Judge Ryan’s view ultimately carried the day when the Sixth Circuit granted rehearing en banc, reversed its prior decision, and issued a new en banc majority opinion authored by Judge Ryan.[28]
V. Conclusion
Dissenting opinions provide a creative opportunity to strengthen your advocacy, and appellate lawyers should thus devote ample consideration of a dissenting judge’s arguments. But all lawyers must be mindful of the duty of candor to the tribunal when citing dissents.[29] Dissents are, of course, not binding authority. Accordingly, when citing dissents in briefs and during oral argument, take care to always include a notation informing the court that the citation arises from a dissenting opinion.[30] Failure to include such a notation could make it appear that you are being less than forthcoming about the cited authority’s weight. At best, this greatly undermines your credibility with the court and at worst could result in disciplinary action in many jurisdictions.
[1] John D. Feerick, Remarks Delivered on the Occasion of the Presentation of the Fordhamstein Award to the Hon. William Hughes Mulligan, 59 Fordham L. Rev. 479, 483 (1991).
[3]136 U.S. 537 (1896), rev’d Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954).
[5] 277 U.S. 438 (1928).
[6] Id. at 469 (Brandeis, J., dissenting).
[7] 389 U.S. 347, 353 (1967) (“Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested.”).
[8] 347 U.S. 388 (1954).
[9] Id. at 390 (Reed, J., dissenting).
[10] 601 S.W.3d 639 (Tex. 2020).
[11] Id. at 658 (Green, J., dissenting).
[12] Vanessa Baird & Tonja Jacobi, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court, 59 Duke L.J. 183, 201 (2009).
[13] 317 U.S. 424, 431 (1943).
[17] See id. at 413 (Frankfurter, J., dissenting) (“This question cannot be answered by closing our eyes to everything except the naked words of the Act of June 30, 1906.”).
[18] Stark v. Holtzclaw, 105 So. 330, 334 (Fla. 1925) (Ellis, J., dissenting) (“I realize that in many cases the serviceability of a dissenting opinion is extremely doubtful, if, indeed, it does not make for harmful results which may be expected to flow from differences of opinion on the part of the members of a court of last resort upon a rule of law by which the responsibilities and liabilities of citizens are to be measured in their relations to one another.”).
[20] Id. at 108 (Black, J., dissenting).
[21] 739 F. App’x 911 (9th Cir. 2018).
[24] Id. at 917 (Bataillon, J., dissenting) (“The majority also ignores facts that show the decline in sales could have been due to factors other than Wexler’s alleged shortcomings in failing to adapt to the new sales model.”).
[25] Id. at 914 (Bataillon, J., dissenting). Perhaps Judge Bataillon’s criticism was amplified because he is a trial judge who sat by designation on the appellate panel in Wexler.
[26] 71 F.3d 218, 223 (6th Cir. 1995), rev’d 155 F.3d 818 (6th Cir. 1998).
[27] Id. at 223 (Ryan, J., dissenting).
[28] Erwin, 155 F.3d at 818.
[29] Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n 2018).
[30] Westlaw appears to have picked up on this hazard, and its new Westlaw Edge platform highlights dissenting opinions in red.
