The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.
Here’s the Gant majority opinion:
[O]ur opinion [in Belton] has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction … that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search.
And here’s the Lightfoot majority:
True enough, the dissent thought Red Cross established a broad rule. See 505 U. S., at 271-272 (opinion of Scalia, J.) (describing Red Cross as announcing a “rule … that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction” (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red Cross. But Red Cross itself establishes no such rule.
These passages raise complex questions about how precedent does and should operate. There are at least four different actors: (i) the precedent dissenters, (ii) the precedent majority, (iii) lower courts, and (iv) the later Court. Let’s take each in turn.
1. Are dissenting opinions reliable when it comes to the meaning of majority opinions?
At a minimum, dissents afford some useful interpretive evidence, in that they tell us what one or more talented, knowledgeable lawyers thought that the Court was saying. Yet dissenters are not exactly disinterested when it comes to reading the majority.
On the one hand, the dissenters have reason to exaggerate: painting the majority as a sweeping ruling can make it an easier target for criticism. And the dissent’s authors, justice and clerks, might just be so worked up that they get carried away.
On the other hand, dissenters frequently—even usually—have strategic reasons for erring on the side of narrowing readings, precisely to discourage broader ones. So a dissent’s broad characterization of the majority could be viewed as a statement against self-interest, stemming either from candor or a lapse of strategic self-control.
2. By considering the majority’s role, and not just the static views of the dissenters, we can view these questions somewhat more dynamically.
Precisely because dissenting opinions inevitably influence later readers, majority-opinion authors have an interest in responding to inaccurate statements in dissenting opinions—and frequently endeavor to do so. Some readers might therefore infer that the authors of majority opinions implicitly agree with unanswered statements in dissents. This inference often underlies reliance on dissents: if the dissent had said something inaccurate about the majority, wouldn’t the majority have spoken up?
But, here as elsewhere, it’s hard to infer consent. Perhaps the majority found the dissent’s characterization to be so obviously wrong as to be undeserving of a response. Or maybe the dissent’s characterization was added at the last minute, or just stayed in the circulated draft, unchanged, even after the majority believed it had made sufficient effort to clarify the issue. Some justices also seem stylistically or temperamentally averse to responding to dissents. So in any given case, it’s generally hard to do anything other than speculate.
Should we adopt a formal practice of giving a dissent’s unanswered characterizations of the majority some force in shaping our reading of the majority? Such a rule would give majorities greater reason to respond with clarity when a dissent rears its head. So overall precedential ambiguity might decline, to the relief of parties and lower courts.
But there are often benefits to precedential ambiguity, such as when greater specificity would prevent a majority from forming at all, or when the majority wants to leave itself or lower courts precedential room to experiment in the future. There is also something more than odd about effectively empowering dissents to establish precedent on topics that even the majority has not clearly addressed. This idea may even be in tension with Article III.
3. How should lower courts figure into this picture?
Given the perils of relying on dissents, one could argue for an exclusionary rule that prohibits lower courts from publishing opinions that rely on Supreme Court dissents.
Perhaps dissenting opinions are so unreliable when it comes to characterizing majority opinions, and lower courts are so unduly influenced by those dissents, that lower court decision-making would be more accurate if judges had to justify their holdings without citing or drawing inferences from the dissents.
But, of course, lower courts would still read and so know about the higher-court dissents, so the viability of this approach depends on how much judicial outcomes are linked to constraints on formal judicial reasoning.
Notably, Gant and Lightfoot do not themselves throw cold water on the idea that lower courts should consider what dissenting opinions say. In other words, Gant and Lightfoot blame the dissents, but leave open the possibility that lower courts were right—or are generally right—to view dissents as a proper source of precedential guidance.
There is a broader point here. The very idea of blaming dissents for lower court decisions suggests that dissenting jurists do in fact have a role in altering lower-court behavior and, thus, in creating de facto precedent. And the more that lower courts consider dissents, the more power the dissenting justices have.
4. What about Court’s behavior in Gant and Lightfoot?
Gant and Lightfoot were trying to justify their readings of precedent by explaining how so many judges could have arrived at contrary readings. The dissent is introduced as a kind of responsible party, even a scapegoat: if only the dissent hadn’t sown so much confusion, more judges would have adopted what Gant and Lightfoot viewed as the correct reading of precedent.
Blaming dissents is thus a means of facilitating doctrinal change. Whether viewed as a rhetorical trope or an emerging doctrinal principle, placing responsibility on dissenting opinions helps to create room for new majorities to undo the doctrinal consequences of their predecessors’ decisions. The previous decision is altered, perhaps through narrowing or extending, and contrary lower court decisions are overridden.
But the “blaming dissents” rationale is at risk of being a bit too convenient, as well as circular. Some lower court judges surely believed that they had adopted the best reading of the relevant Court precedents irrespective of any dissents. Even judges who cited the dissents might have done so simply as additional support or confirmation. Further, whether the dissents in these cases sowed confusion depends on whether the dissents were wrong—and that is the very point that Gant and Lightfoot seek to establish.
Interestingly, an effective instance of blaming dissents might make the dissenters themselves quite happy. True, being labeled as wrong is nobody’s first choice. Dissenters would much rather be vindicated not only on their view of the law but also on their reading of precedent. But neither beggars nor dissenters can be choosers. By setting themselves up to take the blame for broad readings of majority opinions, dissenters might make it more likely that the broad reading is eventually abandoned, as happened in Gant and Lightfoot. So dissenters could win some vindication if the Court eventually blames them for wrongheadedness, thereby moving the law in the dissenters’ preferred direction.
Of course, there are many situations where dissents broadly read or extend majority opinions and don’t get blamed. A plausible recent example concerns same-sex marriage: after Scalia’s Windsor dissent cast the majority as a broad ruling, lower courts promptly followed suit, often emphasizing Scalia’s statements. The Court didn’t respond by condemning lower-court reliance on dissenting opinions; in fact, the Court seemed to draw support from the lower-court decisions, as Neil Siegel has argued. But imagine if Obergefell had come out the other way—would the Court then have been tempted to blame the dissent?
First posted on Prawfs.