Knowing The Minority’s View
A minority or dissenting opinion is an opinion by one or more judges in a legal case who disagree, or dissent, with the decision reached by the majority. Any law student knows that a dissenting opinion creates no binding precedent as any applicable part of case law. Yet, it is not uncommon for judges to cite them as persuasive authority for an argument the holding of a court should be overturned or limited.
John Patrick Dolan founded the California Desert Trial Academy College of Law (CDTA) based on the philosophy of not only teaching students the substantive law, but on training, educating, and developing students to be exceptional attorney-advocates.
Advocates argue for change, especially when a law is unfair or applied unconstitutionally. Knowing the minority view means being aware of what may represent a better way to legally address an issue. There are numerous cases where the minority view has become the majority view.
No individual exemplifies this in the history of American jurisprudence than Supreme Court Justice John Marshall Harlan, known as the “Great Dissenter.” In 1896, in the case of Plessy v. Ferguson, by a vote of 7-1, the Supreme Court of the United States decided a case that approved the principle of separate but equal. This decision would haunt the United States for the next half-century as the decision was used to justify laws mandating segregation in every aspect of life in the Southern U.S., including education, transportation, and public accommodations. The sole, courageous dissenter against the decision in Plessy v. Ferguson decision was Associate Justice John Marshall Harlan a southerner himself from Kentucky.
Plessy was arrested for sitting in the “whites only” section of a rail car. He argued that enforced segregation in separate-but-equal accommodations compromised the principle of legal equality and marked blacks as inferior. Seven members of the Court disagreed, declaring the law constitutional while saying it stamped blacks with “a badge of inferiority” only if “the colored race chooses to put that construction upon it.”
Harlan wrote in his dissent:
“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 colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. . .The arbitrary separation of citizens on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”
Harlan also argued that the decision would harm relations between the races.
“What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation.”
Of Justice Harlan, the historian D. Grier Stephenson wrote:
“more than any justice with whom he served, Harlan understood the Reconstruction Amendments to establish a nationally protected right against racial discrimination, although it is a measure of the Court that he frequently articulated those promises in dissent.”
Legal scholar Bernard Schwartz wrote:
“Harlan’s key dissents have generally been affirmed in the court of history. A century later, his rejection of the narrow view toward civil rights adopted by the Court majority has been generally approved. Harlan’s view that the Fourteenth Amendment made the provisions of the Bill of Rights to apply to the states has also largely been adopted by the Supreme Court.”
Some do not believe that lawyers should do more than interpret the rules. By advocating for change, they act as “definers” not interpreters of the law. The development of trial advocacy tools is essential to success in any judicial or administrative setting, whether advocating for clients or a change in the law. Knowing the minority view is just one tool in becoming an effective attorney-advocate.
Attorneys can help the poor and unfortunate who cannot fight solely by themselves. Law school provides the tools necessary to practice law, which is serving clients. The CDTA provides both the hard and soft skills that attorney-advocates require to meet the needs of clients in the 21st Century and advocate for change. At CDTA, we train, educate, and develop students to be exceptional attorneys and trial advocates. Call us today at (760) 342-0900 or find out more online here.