lone dissent

…a lone dissent?

A lone dissent refers to the dissenting (minority) opinion of the only Justice who disagreed with the Court’s majority opinion. This blog focuses primarily on opinions from the U.S. Supreme Court, but any noteworthy lone dissents from state supreme courts or courts of appeal may be discussed here as well.

Why should we care about lone dissents? Don’t they represent such a small minority viewpoint that they are essentially irrelevant?

On a 9-person court, one Justice still represents 11% of the court’s collective judgment. And if there are any weaknesses in the near-unanimous opinion, you can usually depend on the dissent to shine a bright light on them.

Of greater interest are the lone dissents of one generation that become the majority opinion of a later generation.

Probably the best-known example is Justice Harlan’s lone dissent in the 1896 U.S. Supreme Court case Plessy v. Ferguson. Justice Harlan did not accept the notion of “separate but equal.” He wrote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” By the time the Court decided Brown v. Board of Education in 1954, it had unanimously embraced Justice Harlan’s lone dissent.

As these shifts occur, we also expect to see new lone dissents emerging at the opposite end of the spectrum: those of the last remaining hold-out(s) who still resist the new majority view.

Is there such a thing as a “lone dissenter” who dissents but doesn’t explain why they dissented?

Good question!