Schrödinger’s Dissent: The Hybrid Authority of a Dissenting Opinion
47 Pages Posted: 14 Aug 2023
Date Written: August 9, 2023
A dissenting opinion is the Schrödinger’s cat of authorities: both the law and not the law simultaneously. Courts and scholars often clarify that a dissenting opinion is persuasive rather than binding, presuming that a dissent persuades as primary authority. Emerging from the pen of a judge wearing a black robe and acting in an official capacity, a dissenting opinion exhibits the form of the law. Yet, beneath that lofty sheen, a dissent exhibits the substance of secondary authority. A dissenting judge opines on the case at hand for the inherent purpose of undercutting the law, providing a case law coda. This Article describes the traditional categories of authority, primary and secondary, and identifies the writer as a distinguishing feature. The Article then describes various types of judicial opinion as primary authority and argues that a dissenting opinion inhabits a hybrid category. With exceptional status comes exceptional opportunity. As primary authority, a dissent enjoys the same rhetorical leeway as other opinions; as secondary authority, a dissent is an untethered critique of the law. Over the years, dissenting opinions from the Supreme Court provide enduring examples of a dissent’s mix of primary and secondary authority.
Keywords: dissenting opinion, primary authority, secondary authority, Supreme Court, sovereignty
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