Schrödinger’s Dissent: The Hybrid Authority of a Dissenting Opinion

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 not binding. Outside the universe of precedent, that authority defies easy description. 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 commentary. A dissenting judge writes to undercut the law, providing a case law coda. This Article describes the traditional categories of authority, primary and secondary, and argues that a dissenting opinion inhabits a hybrid category. 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.