I have chosen to write about the dissenting opinion—a subject, I think, of some interest and importance. First of all, some definitions of terms: In speaking of dissenting opinions, I mean to address opinions that disagree with the Court’s reasoning. Some such opinions, when they happen to reach the same disposition as the majority (that is, affirmance or reversal of the judgment below), are technically concurrences rather than dissents. To my mind, there is little difference between the two, insofar as the desirability of a separate opinion is concerned. 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, and that is worth a dissent, even if the dissent is called a concurrence.

But though I include in my topic concurrences, I include only genuine concurrences, by which I mean 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. I do not refer to, and I do not approve of, separate concurrences that are written only to say the same thing better than the court has done, or, worse still, to display the intensity of the concurring judge’s feeling on the issue before the court. I regard such separate opinions as an abuse, and their existence as one of the arguments against allowing any separate opinions at all.

Today, dissents and concurrences are commonplace in the practice of the United States Supreme Court. That has not always been so. During the first decade of the Court’s existence, there was not a single dissent—for the simple reason that, in significant cases at least, there was no opinion of the Court from which to dissent. Whenever more than a mere memorandum judgment was called for, we followed the custom of The King’s Bench and the other common law courts: each justice filed a separate opinion. Not all have cheered the abandonment of that system. In one of his concurrences, Justice Felix Frankfurter regretted that “[t]he volume of the Court’s business has long since made impossible the early healthy practice whereby the justices gave expression to individual opinions.”

The reason for departure from the practice, however, was really not the press of business, but the forceful personality of Chief Justice John Marshall, who established the system we currently use, whereunder one of the justices announces an opinion “for the Court.” Dissents from that Court opinion were very rare at first—only a single one-sentence concurrence during the first four years of Marshall’s chief justiceship, and very few during his entire tenure.

The new system instituted under Marshall made Thomas Jefferson furious. Since 1811, the appointees named to the Court by Jefferson and by his successor and political ally James Madison had constituted a majority on the Court. Yet the Court continued to come out with unanimous, pro-federal opinions written by Marshall, as though nothing had changed and the Federalists were still in control. In an 1820 letter, Jefferson complained about opinions “huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning."

Since Marshall’s time, however, separate opinions have become steadily more frequent. One scholar has calculated that up until 1928 dissents and concurrences combined were filed in only about 15 percent of all Supreme Court cases. Between 1930 and 1957 dissents alone were filed in about 42 percent of all Supreme Court cases. In the October 1992 term, a dissent or separate concurrence was filed in 71 percent of all cases.

In assessing the advantages and disadvantages of separate opinions, one must consider their effects both within and without the Court. Let me discuss the latter first: The foremost and undeniable external consequence of a separate dissenting or concurring opinion is to destroy the appearance of unity and solidarity. From the beginning to the present, many great American judges have considered that to be a virtually dispositive argument against separate opinions. So high a value did Chief Justice Marshall place upon a united front that according to his colleague, Justice William Johnson, he not only went along with opinions that were contrary to his own view, but even announced some. Only toward the end of his career—when his effort to suppress separate opinions had plainly failed—did he indulge himself in dissents, a total of only nine dissents in thirty-four years. In more recent times, no less a judicial personage than Judge Learned Hand warned that a dissent “cancels the impact of monolithic solidarity upon which the authority of a bench of judges so largely depends.”

I do not think I agree with that. It seems to me that in a democratic society the authority of a bench of judges, like the authority of a legislature or the authority of an executive officer, depends quite simply upon a grant of power from the people. And if the terms of the grant are that the majority vote shall prevail, then that is all the authority that is required—for a court no less than for a legislature or for a multi-member executive. Now it may well be that the 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. But to say that the authority of a court depends upon such unanimity in my view overstates the point.

In fact, the argument can be made that artificial unanimity—the suppression of dissents—deprives genuine unanimity of the great force it can have when that force is most needed. United States Supreme Court lore contains the story of Chief Justice Earl Warren’s heroic and ultimately successful efforts to obtain a unanimous Court for the epochal decision in Brown v. Board of Education, which prohibited racial segregation in all public education. I certainly agree that unanimity was important to achieving greater public acceptance. But would it have had that effect if all the decisions of the Supreme Court, even those decided by 5–4 vote, were announced as unanimous? Surely not.

Perhaps things are different when a newly established court is just starting out. Or perhaps they were different, even for a well established court, in simpler, less sophisticated, less bureaucratic times. But I have no doubt that for the United States Supreme Court, at its current stage of development and in the current age, announced dissents augment rather than diminish its prestige. Almost half a century ago (when the number of staff personnel in the executive and legislative branches was even a good deal less than it is today) Justice Louis Brandeis made his oft-quoted observation that the reason the justices of the Supreme Court enjoyed such a high level of popular respect was that, as he put it, “[we] are almost the only people in Washington who do [our] own work.” Dissents make that clear. Unlike a unanimous institutional opinion, a signed majority opinion, opposed by one or more signed dissents makes it clear that these decisions are the product of independent and thoughtful minds, who try to persuade one another but do not simply “go along” for some supposed “good of the institution.”

I think dissents augment rather than diminish the prestige of the Court for yet another reason. When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting—and conducive of respect for the Court—to look back and realize that at least some of the justices saw the danger clearly and gave voice, often eloquent voice, to their concern. I think, for example, of the prophetic dissent of Justice John Marshall Harlan (the earlier Justice Harlan) in Plessy v. Ferguson (the case essentially overruled by Brown v. Board of Education a half century later) which held that, despite the provision of the Constitution requiring equal protection of the laws, the State of Louisiana could require railroads to carry white people and black people in separate cars. Harlan wrote:

...[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man....

Or consider Justice Robert Jackson’s dissent in Korematsu v. United States, the 1944 case in which the Court upheld a military order providing for the internment of Japanese Americans on the West coast. He wrote:

A military order, however unconstitutional, is not apt to last longer than the military emergency....But once a judicial opinion...rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need....All who observe the work of the courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’ A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.

A second external consequence of a concurring or dissenting opinion is that it can help to change the law. That effect is most common in the decisions of intermediate appellate tribunals. When a judge of one of our circuit courts of appeals dissents from an opinion of his colleagues, he warns the courts of appeals of the other twelve circuits (who are not bound to follow that opinion) that they should not too readily adopt the same legal rule. And if they do not, of course—if they are persuaded by the view set forth in the dissent, pressed upon them by counsel in some later case—a conflict in the circuits will develop, ultimately requiring the attention of my Court. At the court of appeals 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 our attention.

At the Supreme Court level, on the other hand, a dissent rarely helps change the law. Even the most successful of our dissenters—Oliver Wendell Holmes, who acquired the sobriquet “The Great Dissenter”—saw somewhat less than 10 percent of his dissenting views ultimately vindicated by later overrulings. Most dissenters are much less successful than that. It sometimes happens that a separate concurring opinion has the effect of shaping the future law, not because it announces a different rule from that of the Court’s opinion, but simply because it expresses that rule much more felicitously. What immediately comes to mind is Justice Harlan’s separate concurrence in Katz v. United States, which held that our constitutional protection against “unreasonable searches and seizures” forbade the police from eavesdropping upon a telephone conversation conducted from a public phone booth. Harlan joined the opinion of the Court, but he also wrote separately to say:

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement [for the provision against unreasonable searches and seizures to apply], first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’

That formulation, rather than the opinion of the Court in Katz, is repeatedly cited in later cases, and has become the classic (if somewhat circular) statement of Fourth Amendment protection.

The dissent most likely to be rewarded with later vindication is, of course, a dissent that is joined by three other justices, so that the decision is merely a 5–4 holding. That sort of a dissent, at least in constitutional cases (in which, under the practice of our Court, the doctrine of stare decisis—i.e., adhering to precedent—is less rigorously observed) emboldens counsel in later cases to try again, and to urge an overruling—which sometimes, although rarely, occurs.

And that observation leads me to another external effect of a dissenting opinion, which is to inform the public in general, and the Bar in particular, about the state of the Court’s collective mind. Let me give a concrete example: In 1992 the Court held, in a case called Lee v. Weisman, that the Establishment Clause of our Bill of Rights, which prohibits an “Establishment of Religion,” forbids public officials from making a nondenominational invocation part of the ceremonies at a public high school graduation. Had the judgment been rendered by an institutional opinion for the Court, that rule of law would have the appearance of being as clear, as unquestionable, and as stable as the rule that denominational prayers cannot be made a mandatory part of the school day. In fact, however, the opinion was 5–4. It is clear to all that the decision was at the very margin of Establishment Clause prohibition; that it would not be extended much further and may even someday be overruled.

Or to take another example, one that involves the provision of our Bill of Rights that forbids laws which prohibit the free exercise of religion. In a case called Employment Division v. Smith (1990), the Court held that this did not form the basis for a private exemption from generally applicable laws governing conduct—so that a person could not claim a right to use a proscribed psychotropic drug (peyote) in religious ceremonies. There again, the decision on the point was 5–4, making clear to one and all (and to future litigants, in particular) that this is a highly controverted and thus perhaps changeable portion of our jurisprudence.

I have tried to be impartial in the examples I have chosen; I wrote the dissent in the first case, and the opinion for the Court in the second. In both cases, I think it was desirable and not destructive that the fragility of the Court’s holding was apparent. This is not to suggest, by the way, that every 5–4 decision of our Court is a sitting duck for future overruling. In cases involving statutory law, rather than the Constitution, we will almost certainly not revisit the point, no matter how closely it was decided. But even there, disclosure of the closeness of the vote provides useful information to the legal community, suggesting that the logic of the legal principle at issue has been stretched close to its utmost limit and will not readily be extended further.

Of course the likelihoods and unlikelihoods, the fragilities and rock-solid certainties signaled by unanimous or closely divided opinions have a relatively short shelf-life. They become stale, so to speak, as the justices who rendered the opinion in question are, one by one, replaced. And that raises what seems to be one of the undesirable external effects of a system of separate opinions. It produces, or at least facilitates, a sort of vote-counting approach to significant rules of law. Whenever one of the five justices in a 5-4 constitutional decision has been replaced there is a chance, astute counsel must think, of getting that decision overruled. And worse still, when the decision in question is a highly controversial constitutional decision, that thought occurs not merely to astute counsel but to the president who appoints the new justice, to the senators who confirm him, and to the lobbying groups that have the power to influence both. If the decision in question is controversial enough—Roe v. Wade is the prime modern example—the appointment of the new justice becomes something of a plebiscite upon the meaning of the Constitution in general and of the Bill of Rights in particular, in effect giving the majority the power to prescribe the meaning of an instrument designed to restrain the majority. That could not happen, or at least it could not happen as readily, if the individual positions of all the justices were not known.

Let me turn to the last, but by no means the least, of the external consequences of our system of separate opinions. By enabling, indeed compelling, the justices of our Court, through their personally signed majority, dissenting, and concurring opinions, to set forth clear and consistent positions on both sides of the major legal issues of the day, this system has kept the Court in the forefront of the intellectual development of the law. In our system, it is not left to the academicians to stimulate and conduct discussion concerning the validity of the Court’s latest ruling. The Court itself is not just the central organ of legal judgment; it is center stage for significant legal debate. In our law schools, it is not necessary to assign students the writings of prominent academics so that they may recognize and reflect upon the principal controversies of legal method or of constitutional law. Those controversies appear in the opposing opinions of the Supreme Court itself, and can be studied from that text: for example, whether the Constitution guarantees a generalized “right of privacy,” or whether it protects unenumerated rights through the Due Process Clause. The affirmative side of those questions appears in a number of Court opinions, including Griswold v. Connecticut, a 1965 case establishing a federal constitutional right to contraception. To hear the case for the negative side, you might read the relevant portion of the book that Judge (and ex-Yale Professor) Robert Bork published several years ago. But you need not. You will find that negative side put quite concisely and quite elegantly in Griswold itself, in the dissenting opinions of Justice Hugo Black and Justice Potter Stewart.

Our dissents convey knowledge, not only about what legal issues are current, but also about what legal controversies are timeless. Judicial activism, for example—which in our federal system means giving an expansive meaning to the text of the Constitution—is criticized first from the left and later from the right, as the practitioners of that philosophy have moved in the opposite direction. In 1905, when the Court in Lochner v. New York held unconstitutional a New York law limiting bakery workers to a ten-hour day (on the theory that it deprived them of “liberty of contract” without the “due process of law” which the Fourteenth Amendment requires), Justice Holmes protested that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” And in another dissent in Baldwin v. Missouri he wrote:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions.

More than half a century after Holmes began his protests, listen to the second Justice Harlan making the same objection, but now complaining about the Court’s imposition of a liberal moral belief in a case, Harper v. Virginia Bd. Of Elections, that used the Fourteenth Amendment to invalidate a state poll tax:

Property and poll-tax qualifications, very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized. It is of course entirely fitting that legislatures should modify the law to reflect such changes in popular attitudes. However, it is all wrong, in my view, for the Court to adopt the political doctrines popularly accepted at a particular moment of our history and to declare all others to be irrational and invidious, barring them from the range of choice by reasonably minded people acting through the political process.

In sum, the system of separate opinions has made the Supreme Court the central forum of current legal debate, and has transformed its reports from a mere record of reasoned judgments into something of a History of American Legal Philosophy with Commentary. I have no doubt that this has contributed enormously to the prominence of the Court and of the United States Reports.

I turn now to what I have called the “internal” consequences of separate opinions—their effect within the Court itself. They do not, or at least need not, produce animosity and bitterness among the members of the Court. Dissenting will have that effect, I suppose, if it is an almost unheard-of occurrence, subjecting the writer of the Court’s opinion to what may be viewed as a rare indignity. But we come from a tradition in which each judge used to write his own opinion. Dissents are simply the normal course of things. Indeed, if one’s opinions were never dissented from, he would begin to suspect that his colleagues considered him insipid, or simply not worthy of contradiction. I doubt whether any two justices have dissented from one another’s opinions any more regularly, or any more sharply, than did my former colleague Justice William Brennan and I. I always considered him, however, one of my best friends on the Court, and I think that feeling was reciprocated.

The most important internal effect of a system permitting dissents and concurrences is to improve the majority opinion. It does that in a number of ways. To begin with, the mere prospect of a separate writing renders the writer of the majority opinion more receptive to reasonable suggestions on major points. I do not mean to minimize the extent to which, even in the absence of a system of dissenting opinions, the colleagues of the judge who drafts the opinion can suggest and obtain desirable changes; that happens in our Court as well, not only when the opinion is unanimous, but even among the five (or six or seven or eight) justices who form the majority in a split decision. However, human nature being what it is, nothing causes the writer to be as solicitous of objections on major points as the knowledge that, if he does not accommodate them, he will not have a unanimous Court and will have to confront a separate concurrence.

The second way in which separate opinions improve the majority opinion is this: Though the fact never comes to public light, 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. When I have been assigned the opinion for the Court in a divided case, nothing gives me as much assurance that I have written it well as the fact that I am able to respond satisfactorily (in my judgment) to all the onslaughts of the dissent or separate concurrence. The dissent or concurrence puts my opinion to the test, providing a direct confrontation of the best arguments on both sides of the controverted points. It is a sure cure for laziness, compelling me to make the most of my case. Ironic as it may seem, I think a higher percentage of the worst opinions of my Court—not in result but in reasoning—are unanimous ones.

And finally, the last way in which a separate opinion can improve the majority opinion is by becoming the majority opinion. Not often, but much more than rarely, an effective dissent or concurrence, once it is circulated, changes the outcome of the case, winning over one or more of the justices who formed the original majority. Objections to the proposed majority opinion made at oral conference, or even in an exchange of written memoranda, will never be as fully developed, as thoroughly researched, and as forcefully presented as they are in a full-dress dissenting or concurring opinion prepared for publication.

Besides improving the Court’s opinions, I think 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. Even if they do not personally write the majority or the dissent, their name will be subscribed to the one view or the other. They cannot, without risk of public embarrassment, meander back and forth—today providing the fifth vote for a disposition that rests upon one theory of law, and tomorrow providing the fifth vote for a disposition that presumes the opposite.

Finally, and to me most important of all, a system of separate opinions renders the profession of a judge—and I think even the profession of a lawyer—more enjoyable. One of the more cantankerous of our justices, 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.” I am not sure I agree with that, but I surely agree that it makes the practice of one’s profession as a judge more satisfying. To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less-differing views of one’s colleagues; to address precisely the points of law that one considers important and no others; to express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes the majority’s disposition should engender—that is indeed an unparalleled pleasure.

And it blesses the one who receives, I think, as well as the one who gives—that is, those who read separate opinions as well as those who write them. Legal scholars often bemoan the fact that ours is the only profession in which one does not necessarily study the best of what has been produced, but often the worst. If one is a student of Italian literature, he will read Dante. If a student of physics, Newton. If biology, Darwin. And so forth. But if his field of study is law, he will—at least in a common-law system such as ours—be condemned to reading, as often as not, the likes of Lord Tindall or Justice Gabriel Duvall, not because they write well or think well (they do not), but because what they say is authoritative; it is the law.

Dissents and separate concurrences provide a small parole from this awful sentence. Unlike majority opinions, they need not be read after the date of their issuance. They will not be cited, and will not be remembered, unless some quality of thought or of expression commends them to later generations. That is often the case, however, since dissents can have a character and flair ordinarily denied to majority opinions.

I shall conclude with Justice Jackson on changing one’s mind. Had it not been for the Court’s tradition of writing separate opinions, this statement would not exist. It occurs in a concurrence explaining why Jackson joined an opinion that reached precisely the opposite result of an opinion that Jackson himself had rendered ten years earlier, when he was Attorney General. It includes the following:

Precedent...is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others....Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ ...And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: ‘My own error, however, can furnish no ground for its being adopted by this Court....’ ...Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary— ‘Ignorance, sir, ignorance.’ But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all (McGrath v. Kristensen, 1950).

Antonin Scalia has been an associate justice of the Supreme Court of the United States since 1986.