Dr.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY LUCKNOW

Law of Jurisprudence
Final Draft
‘Understanding ‘Dissenting Opinion’ Via Landmark US
judgements’

SUBMITTED TO: - SUBMITTED BY:-

Dr. MANWENDRA KUMAR TIWARI AKASH PRAKHAR VERMA

ASSISTANT PROFESSOR (LAW) ROLL NO. - 17

B.A. LL.B. (Hons.)

5th SEMESTER

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 ACKNOWLEDGEMENT

This project is a result of dedicated effort, so primarily I would thank the

Supreme Soul as without his kind presence the project could not have
been complete. Then I would like to thank my guide Dr. Manwendra
Kumar Tiwari for supporting me in making this project and providing me
with his valuable guidance. Further, I would like to thank my parents and
friends who have helped me with their valuable suggestion and guidance
in various phases of completion of the project. Last but not the least I
would like to thank my batchmates who have helped me a lot.

- Akash Prakhar Verma

Roll no. 17

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 Table of Contents

Table of Cases ............................................................................................................................ 4

Definition and Importance of Dissenting Opinions ................................................................... 4

Dissents Which were Incorporated into the Law ....................................................................... 6

1. Betts v Brady (1942) ....................................................................................................... 6

2. Gideon v. Wainwright (1963)......................................................................................... 7

3. Plessy v. Ferguson (1896) ............................................................................................ 10

Conclusion ............................................................................................................................... 14

Bibliography ............................................................................................................................. 15

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 Table of Cases

Betts v Brady 316 U.S. 455 (1942)

Gideon v Wainwright 372 US 335 (1963)
Plessy v Ferguson 163 U.S. 537 (1896)

Definition and Importance of Dissenting Opinions

A dissenting opinion in a legal case is an opinion of one or more judges expressing

disagreement with the majority opinion of the court which gives rise to its judgment.

A dissenting opinion does not create binding precedent or become part of case law. However,
dissenting opinions are sometimes cited as persuasive authority when arguing that the court's
holding should be limited or overturned.

Sometimes, a dissent in an earlier case is used to spur a change in Law, and the later case
might write a majority opinion for the same rule of law cited by the dissent in the earlier case.
They are important because they document the struggle between different interpretations of
the law.

The dissenting opinion may disagree with the majority for any number of reasons – a
different interpretation of the case law, use of different principles, or a different interpretation
of the facts. Dissents are written at the same time as the majority opinion, and are often used
to dispute the reasoning used by the majority. They interpret the law, as it applies to a case, in
a way that differs from the majority's interpretation.

A dissenting opinion is different from a concurring opinion, which agrees with the Court's
decision but provides an explanation that differs from that of the majority.

A justice who disagrees with the verdict in a case usually writes a dissenting opinion, though
there is no requirement that a dissent be accompanied by an opinion. However, most
dissenting justices do write one to explain why they disagree with the majority decision. For
example, in Plessy v. Ferguson (1896), the Court let stand a state law requiring trains to

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provide “separate but equal” facilities for black and white passengers. Justice John Marshall
Harlan wrote a dissenting opinion in which he said, “the Constitution is color-blind, and
neither knows nor tolerates classes among citizens.”

A dissenting opinion is not an attempt to change the minds of the Court's majority because
the Court has already reached a final decision before the dissenting opinion is written. Rather,
the dissenter hopes to arouse public opinion against the majority opinion.

Ultimately, the dissenting judge hopes that the Court will reconsider the majority opinion and
overrule it and that his opinion will someday become the basis for a majority opinion in a
similar case. Chief Justice Charles Evans Hughes wrote - “A dissent in a court of last resort is
an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting judge believes the court to
have been betrayed.”

For example, Justice Harlan's 1896 dissent in Plessy was vindicated by the majority opinion
in Brown v. Board of Education (1954), in which the Court unanimously rejected the
“separate but equal” doctrine and ruled that racially segregated public schools were
inherently unequal. Similarly, Justice Hugo Black's dissenting opinion in Betts v. Brady
(1942), in which he wrote that criminal defendants in state courts have the right to counsel,
became the majority opinion in Gideon v. Wainwright (1963).

Over the course of history, however, dissenting opinions have rarely been incorporated into
later decisions. Justice Oliver Wendell Holmes, who was known as the Great Dissenter, wrote
173 dissenting opinions during 30 years on the Supreme Court. Yet few of Holmes's
dissenting opinions sparked reversals of court decisions.

The Supreme Court does not readily admit errors and overrule past decisions. The principle
of stare decisis (“Let the decision stand”) has a powerful influence on the Court. Justices
usually accept precedents established in earlier Court decisions as guides in deciding later
cases.

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 Dissents Which were Incorporated into the Law

Though it is rare for dissenting opinions to become a part of the law in some later ruling,
history has seen dissenting opinions becoming part of Law in landmark cases.
1. Betts v Brady1 (1942)
Facts of the case
The petitioner had been indicted for robbery in the Circuit Court of Carroll County,
Maryland. As he did not have the funds, he was unable to employ counsel and requested that
counsel be appointed for him2. But was told that this could not be done as counsel for
indigent defendants except in prosecutions for murder and rape were not appointed.

The petitioner pleaded not guilty and elected to be tried without a jury. Witnesses were
summoned in his behalf and he cross-examined the State's witnesses and examined his own.
The judge found him guilty and imposed a sentence of eight years.

While serving his sentence, the petitioner filed a petition for a writ of habeas corpus alleging
he had been deprived of the right to assistance of counsel guaranteed by the Fourteenth
Amendment of the federal Constitution with a judge of the Circuit Court for Washington
County, Maryland. His contention was rejected, and he was remanded to the custody.

Another petition for a writ of habeas corpus was presented to Hon. Carroll T. Bond, Chief
Judge of the Court of Appeals of Maryland, setting up the same grounds for the prisoner's
release as the former petition. At the hearing, Judge Bond granted the writ but, for reasons set
forth in an opinion, denied the relief prayed and remanded the petitioner to the respondent's
custody.

Betts finally filed for certiorari to the Supreme Court.

In a six to three decision, the Court found that Betts did not have the right to be appointed
counsel with Justice Hugo Black emphatically dissenting. In the majority opinion, Justice
Owen Roberts said,

1
316 U.S. 455 (1942)
2
In Powell v. Alabama, the Court had held that state defendants in capital cases were entitled to counsel even
when they could not afford it but the right to an attorney in trials in the states was not obligatory.

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The Fourteenth Amendment prohibits the conviction and incarceration of one whose trial is
offensive to the common and fundamental ideas of fairness and right, and while want of
counsel in a particular case may result in a conviction lacking in such fundamental fairness,
we cannot say that the amendment embodies an inexorable command that no trial for any
offense, or in any court, can be fairly conducted and justice accorded a defendant who is not
represented by counsel.

In this selection from the majority opinion and throughout the rest of the opinion, Roberts, J.
continually made the point that not all defendants in all cases will need the assistance of
counsel in order to receive a fair trial with due process. However, in his dissent, Black wrote,

A practice cannot be reconciled with ‘common and fundamental ideas of fairness and right,’
which subjects innocent men to increased dangers of conviction merely because of their
poverty. Whether a man is innocent cannot be determined from a trial in which, as here,
denial of counsel has made it impossible to conclude, with any satisfactory degree of
certainty, that the defendant's case was adequately presented.

Black that the denial of counsel based on financial stability makes it so that those in poverty
have an increased chance of conviction, which is not equal protection of the laws under the
Fourteenth Amendment. Black argued that because the right was guaranteed in federal
courts3, the Fourteenth Amendment should make the right obligatory upon the states;
however, the majority disagreed. He said that a man of average intelligence could not
possibly be expected to represent himself without any training in such matters as the law.

Due process of law demands that where a man is tried for robbery, Maryland does not have to
furnish counsel to an indigent defendant.

2. Gideon v. Wainwright (1963)4

If an obscure Florida convict named Clarence Earl Gideon had not sat down in his prison
cell . . . to write a letter to the Supreme Court . . . the vast machinery of American law would

3
In its decision in Johnson v. Zerbst, the Supreme Court had held that defendants in federal
courts had a right to counsel guaranteed by the Sixth Amendment
4
372 US 335 1963

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have gone on functioning undisturbed. But Gideon did write that letter, the Court did look
into his case . . . and the whole course of American legal history has been changed.
—Robert F. Kennedy
Facts of the case

A burglary occurred at the Bay Harbor Pool Room in Panama City, Florida on June 3, 1961.
Someone broke a window, smashed the cigarette machine and jukebox, and stole money from
both. Later that day, a witness reported that he had seen Clarence Earl Gideon in the
poolroom at that morning. The police arrested Gideon and charged him with breaking and
entering.
Gideon was a semi-literate drifter who could not afford a lawyer, so at the trial, he asked the
judge to appoint one for him. Gideon argued that the Court should do so because the Sixth
Amendment says that everyone is entitled to a lawyer. The judge denied his request, ruling
that the state did not have to pay a poor person's legal defense unless he was charged with a
capital crime or "special circumstances" existed. Gideon was left to represent himself.

Gideon was found guilty of breaking and entering and petty larceny, which was a felony 5. He
was sentenced to five years in a Florida state prison, partly because of his prior criminal
record by the Circuit Court of the Fourteenth Judicial Circuit of Florida. While in prison, he
began studying law in the prison library. His study of the law led him to file a petition for
habeas corpus with the Supreme Court of Florida, which asked that he be freed because he
had been imprisoned illegally. After the Supreme Court of Florida rejected his petition, he
handwrote a petition for a writ of certiorari to the Supreme Court of the United States, asking
that it hear his case6. The Court allowed him to file it in forma pauperis, which meant that the
Court would waive the fees generally associated with such a petition. Generally, the Court
dismisses most of these petitions; Gideon's was among those that it did not dismiss.

In state criminal trials, are indigent defendants entitled to a lawyer, even in noncapital cases?
That was the question the Court agreed to decide when they accepted Gideon's petition. It
was not merely a question of whether Gideon had been treated fairly; the Court's ruling
would affect many other people who faced similar circumstances.

5
State v. Gideon (1961)
6
Gideon v. Wainwright (1963) )Wainwright replaced Cochran as Director of the Division of Corrections

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In its previous decision, Betts v. Brady (1942), the Court had held that in state criminal trials,
an indigent defendant must be supplied with an attorney only in special circumstances, which
included complex charges and incompetence or illiteracy on the part of the defendant. Since
Gideon had not claimed special circumstances, the Court would have to overturn Betts in
order to rule in Gideon's favor. (Florida's state law provided indigent defendants with lawyers
only in capital cases; many other states had laws providing lawyers to most or all indigent
defendants.)

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defence.

Amendment XIV
Section 1. - All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law, which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

The decision was unanimous.

Justice Black delivered the Majority opinion of the Court. The key excerpts are:

Since 1942, when Betts v. Brady . . . was decided by a divided Court, the problem of a
defendant's federal constitutional right to counsel has been a continuing [sic] source of
controversy and litigation in both state and federal courts. To give this problem another
review here, we granted certiorari . . . Since Gideon was proceeding in forma pauperis, we
appointed counsel to represent him and requested both sides to discuss in their briefs and
oral arguments the following: "Should this Court's holding in Betts v. Brady be
reconsidered? . . . .
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On the basis of this historical data the Court concluded that "appointment of counsel is not a
fundamental right, essential to a fair trial."

We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's
guarantee of counsel is not one of these fundamental rights.

The judgment is reversed and the cause is remanded to the Supreme Court of Florida for
further action not inconsistent with this opinion.

3. Plessy v. Ferguson (1896)7

"The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality
of the two races before the law, but in the nature of things it could not have been intended to
abolish distinctions based upon color, or to enforce social, as distinguished from political,
equality, or a commingling of the two races upon terms unsatisfactory to either." —Justice
Henry Billings Brown, speaking for the majority

Facts of the case

In 1890, Louisiana passed the Separate Car Act, which stated "that all railway companies
carrying passengers in their coaches in this state, shall provide equal but separate
accommodations for the white, and colored races, by providing two or more passenger
coaches for each passenger train, or by dividing the passenger coaches by a partition so as to
secure separate accommodations. . ." The penalty for sitting in the wrong compartment was a
fine of $25 or 20 days in jail.

On June 7, 1892, Homer Plessy purchased a first-class passage from New Orleans to
Covington, Louisiana and sat in the railroad car designated for whites only in an act of
planned civil disobedience. The railroad officials arrested Plessy and charged him with
violating the Separate Car Act.
In the criminal district court for the parish of Orleans, Plessy argued that the Separate Car Act
violated the Thirteenth and Fourteenth Amendments to the Constitution8.

7
163 U.S. 537 (1896)

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Thirteenth Amendment
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.

Fourteenth Amendment
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction
thereof are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

John Howard Ferguson was the judge presiding over Plessy's criminal case in the district
court. He had previously declared the Separate Car Act "unconstitutional on trains that
travelled through several states." However, in Plessy's case he decided that the state could
choose to regulate railroad companies that operated solely within the state of Louisiana.
Therefore, Ferguson found Plessy guilty and declared the Separate Car Act constitutional.

Plessy appealed the case to the Louisiana State Supreme Court, which affirmed the decision
that the Louisiana law as constitutional9. Plessy petitioned for a writ of error from the
Supreme Court of the United States10.

The decision was not unanimous.

The decision was handed down by a vote of 7 to 1 (Justice David Josiah Brewer did not
participate in the decision), with the majority opinion written by Justice Henry Billings
Brown and the dissent written by Justice John Marshall Harlan. "Separate but equal"
remained standard doctrine in U.S. law until 1954, when the Supreme Court overturned its
decision Brown v. Board of Education.

8
State of Louisiana v. Plessy (1892)
9
Ex parte Plessy (1892)
10
Plessy v. Ferguson (1896)
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Plessy's arguments based on the Fourteenth Amendment, seeing no way in which the
Louisiana statute violated it. In addition, the majority of the Court rejected the view that the
Louisiana law implied any inferiority of blacks, in violation of the Fourteenth Amendment.
Instead, it contended that the law separated the two races as a matter of public policy.

Justice Henry Brown delivered the majority opinion of the court.

Excerpts from the Majority Opinion
. . . The argument also assumes that social prejudices may be overcome by legislation, and
that equal rights cannot be secured to the negro except by an enforced commingling of the
two races. We cannot accept this proposition. If the two races are to meet upon terms of
social equality, it must be the result of natural affinities, a mutual appreciation of each other's
merits and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial
instincts or to abolish distinctions based upon physical differences, and the attempt to do so
can only result in accentuating the difficulties of the present situation.

…We consider the underlying fallacy of the plaintiff's argument to consist in the assumption
that the enforced separation of the two races stamps the colored race with a badge of
inferiority. If this be so, it is not by reason of anything found in the act, but solely because the
colored race chooses to put that construction upon it."

Excerpts from the Dissenting Opinion

Justice John Marshall Harlan wrote a scathing dissent and went on to say:
“But in 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, and
neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are
equal before the law.”

The case helped cement the legal foundation for the doctrine of separate but equal, the idea
that segregation based on classifications was legal as long as facilities were of equal quality.

The Impact of the Case: "Separate but Equal"

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The Supreme Court of the United States determined that if legislation makes distinctions
based on race, but does not deprive anyone of rights or privileges, it is constitutional. The
Court seemed to believe that the common practice of separation was an inconvenience, not
something that abridged the rights of African Americans. The Court also presumed that
legislation was powerless to do away with racial instincts or to abolish distinctions based on
physical differences.

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 Conclusion

A dissenting opinion does not create binding precedent or become part of case law. However,
dissenting opinions are sometimes cited as persuasive authority when arguing that the court's
holding should be limited or over-turned.
Sometimes, a dissent in an earlier case is used to spur a change in Law, and the later case
might write a majority opinion for the same rule of law cited by the dissent in the earlier case.
They are important because they document the struggle between different interpretations of
the law.
For example, Justice Harlan's 1896 dissent in Plessy was vindicated by the majority opinion
in Brown v. Board of Education (1954), in which the Court unanimously rejected the
“separate but equal” doctrine and ruled that racially segregated public schools were
inherently unequal. Similarly, Justice Hugo Black's dissenting opinion in Betts v. Brady
(1942), in which he wrote that criminal defendants in state courts have the right to counsel,
became the majority opinion in Gideon v. Wainwright (1963).

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 Bibliography

Online Resources -

1. www.brownvboard.org
2. www.nationalcenter.org
3. www.findlaw.com
4. www.landmarkcases.org
5. www.law.cornell.edu
6. www.supreme.justia.com
7. www.encarta.com
8. www.oyez.com
9. www.encyclopedia.com

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