The late Second Circuit Judge William Hughes Mulligan reportedly remarked that a “primary purpose of a dissent is, of course, to annoy the majority.” See John D. Freerick, Remarks Delivered on the Occasion of the Presentation of the Fordham-Stein Award to the Honorable William Hughes Mulligan, 59 Fordham L. Rev. 479, 483 (1991). “Sour grapes” aside, what else motivates appellate judges to write dissenting opinions?
First and foremost, a dissenting opinion memorializes the reasons for the dissenter’s disagreement with the majority opinion. The source of the disagreement may rest on additional facts or relevant law omitted from the majority opinion, or both. Relatedly, a dissent may prompt the majority to clarify its opinion and possibly limit its scope to the particular facts of the case. As Justice Ruth Bader Ginsburg observed, “On the utility of dissenting opinions, I will mention first their in-house impact. My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation.” See Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minnesota L. Rev. 1, 3 (2010). “Vigorous written debate of the issues in a separate appellate opinion also can serve to improve the majority’s final work product by forcing the prevailing side to deal with (or to ignore at its peril) the toughest objections that can be raised to its position as urged by the losing side and/or by the dissenting opinion.” Robert G. Flanders Jr., The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents are Valuable, 4 Roger Williams Univ. L. Rev. 400, 408 (1999).
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