A dissenting opinion is where a judge explains why she disagrees with the conclusions reached by a majority of the court.
In the United States appellate courts sit as a panel of at least three judges. Let’s say an appellate court meets to decide whether a trial court judge made the right decision. If two judges decide the trial court made the right decision then the appellate court will affirm the trial court’s decision. The third judge, who disagrees with the other judges, can write an opinion in which she explains why she disagrees. Her explanation as to why she disagrees is a dissenting opinion.
Dissenting Opinions and Precedent
Dissenting opinions are not binding case law. The majority rejected the decision of the dissenting judge, therefore, no trial courts are required to follow the reasoning of the dissenting judge.
So why do judges write dissenting opinions?
Judges may write a dissenting opinion for a number of reasons. But one important motivation for a judge to a write a dissenting opinion is so that judges and attorneys will know why she disagreed with the majority. It is possible that other jurisdictions, or future decisions, will find her opinion persuasive.
For example, let’s say an appellate level court in California reaches a certain decision in 2019. One judge writes a dissenting opinion. In the coming years, courts in California and elsewhere might come to decide that the dissenting judge’s reasoning was better than the majority’s reasoning. Her dissenting opinion could be the basis for a majority opinion sometime in the future.
Below is a video on concurring and dissenting opinions:
