Dissenting Opinion

Antonio Scalia
Why are legal opinions
important?
+ Legal opinions are important, after all, for the reasons they
give, not the results they announce; results can be
announced in judgment orders without opinion.
+ An opinion that gets the reasons wrong gets everything
wrong which it is the function of an opinion to produce.
+ Scalia also includes genuine concurrences within the
dissent, which is separate writings that disagree with the
grounds upon which the court has rested its decision, or
that disagree with the court’s omission of a ground which
the concurring judge considers central.
External Consequences of Dissent
+ Destroys appearance of unity and solidarity - people will be more inclined to accept without
complaint a unanimous opinion of a court, just as they will be more inclined to accept willingly a
painful course decided upon unanimously by their legislature.
+ Helps in changing the law – only at the lower and appellate court stage (not so much at the SC
level) - a dissent is also a warning flag to the Supreme Court: the losing party who seeks review can
point to the dissent as evidence that the legal issue is a difficult one worthy of the Court’s attention.
Sometimes concurring opinions might change law.
+ Informs the public in general, and the bar in particular, about the State of the Court’s collective
mind.
+ Helps in intellectual development of law - Supreme Court dissents convey knowledge, not only
about what legal issues are current, but also about what legal controversies are timeless. Example -
Judicial activism
Internal Consequences of Dissent
+ Improves majority opinion - the mere prospect of separate writing renders the writer of the majority
opinion more receptive to reasonable suggestions on major points. The first draft of a dissent often
causes the majority to refine its opinion, eliminating the more vulnerable assertions and narrowing
the announced legal rule. It becomes majority.
+ a system of separate writing improves the Court’s judges - It forces them to think systematically
and consistently about the law, because in every case their legal views are not submerged within an
artificially unanimous opinion but are plainly disclosed to the world.
+ System of separate opinions renders the profession of a judge more enjoyable—and I think even
the profession of a lawyer—more enjoyable. Justice William O. Douglas, once wrote that “the right
to dissent is the only thing that makes life tolerable for a judge of an appellate court. Or [D]issents
or concurring opinions may salvage for tomorrow the principle that was sacrificed or forgotten
today.
Problems of Concurrence/Dissent

+ Problem in determining ratio –

Re Delhi Laws Act case
Sr Bommai v UOI
+ Instability of courts’ decision making
+ Collegiality of judges is broken
Statutory Interpretation as
Practical Reasoning
Eskridge & Frickey
Understanding Interpretation

+ When practitioners give advice to clients about what a statute means,

they look at the text of the relevant statutory provisions, any legislative
history that is available, the context in which the legislation was
enacted, the overall legal landscape, and the lessons of common sense
and good policy.
+ When law professors talk about statutory interpretation, they tend to
posit a more abstract, "grand" theory that privileges one or another of
these approaches as "foundational
Intention and Purpose

+ Intention typically refers to the specific goals or objectives that

lawmakers had in mind when drafting a statute,
+ purpose refers to the broader societal goals that the statute aims
to achieve.
+ Judges often consider both legislative intent and purpose when
interpreting statutes, alongside other factors like the text of the
law, legislative history, and common sense.