Minority Opinions That Shaped the Law
Famous Dissenting Opinions
The most powerful dissents in American law — opinions that challenged the majority, predicted future shifts in doctrine, and sometimes became the law of the land. Understanding dissents is essential for mastering legal reasoning and performing well on law school exams.
84
Dissents Analyzed
7
Subject Areas
200+
Years of Jurisprudence
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Deep Analysis
Constitutional Law
United States v. Lopez
Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, dissented, arguing that gun-related violence near schools substantially affects interstate commerce through its impact on education, workforce productivity, and the national economy. The dissent contended that the majority's approach was inconsistent with the Court's post-New Deal Commerce Clause precedents and improperly limited Congress's rational basis for finding a commercial nexus.
United States v. Morrison
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented, arguing that the majority's economic/noneconomic distinction was unworkable and that Congress's extensive factual findings of substantial effects on interstate commerce should have been given deference. The dissent contended that the majority was returning to the pre-New Deal era of judicial second-guessing of congressional economic judgments.
Gonzales v. Raich
Justice O'Connor, joined by Chief Justice Rehnquist and Justice Thomas, dissented, arguing that the majority's reasoning effectively returned to a pre-Lopez framework with no meaningful limits on Commerce Clause power. O'Connor contended that if homegrown marijuana for personal medical use is economic activity subject to aggregation, then it is difficult to imagine any activity that Congress cannot regulate.
National Federation of Independent Business v. Sebelius
The joint dissent of Justices Scalia, Kennedy, Thomas, and Alito would have struck down the entire ACA, arguing that the individual mandate was neither a valid exercise of the commerce power nor the taxing power, and that it was not severable from the rest of the Act. Justice Ginsburg, joined by Justices Sotomayor, Breyer, and Kagan, concurred in the judgment on the mandate but dissented on the Commerce Clause analysis, arguing the mandate was a valid exercise of the commerce power.
Lochner v. New York
Justice Holmes wrote a famous dissent arguing that the Fourteenth Amendment does not enact Herbert Spencer's Social Statics and that the Constitution permits states to regulate economic matters as long as a reasonable person could regard the law as a rational response to a perceived problem. Justice Harlan also dissented, arguing the evidence supported the legislature's judgment that bakery work posed genuine health risks.
West Coast Hotel Co. v. Parrish
Justice Sutherland, joined by Justices Van Devanter, McReynolds, and Butler, dissented, maintaining that the minimum wage law unconstitutionally impaired the freedom of contract and that the meaning of the Constitution does not change with the shifting of economic winds.
Griswold v. Connecticut
Justices Black and Stewart dissented separately. Both argued that while the Connecticut law was foolish, there was no general constitutional right to privacy. Justice Black argued that the Court was engaging in the same substantive due process analysis it had properly rejected in repudiating Lochner, substituting its own values for those of the legislature.
Roe v. Wade
Justice White dissented, arguing that the Court was engaging in raw judicial power by imposing its own values on the states in an area where the Constitution is silent. Justice Rehnquist also dissented, arguing that the right to privacy was not broad enough to include the abortion decision and that the proper standard of review was rational basis, not strict scrutiny.
Planned Parenthood of Southeastern Pennsylvania v. Casey
Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, dissented from the reaffirmation of Roe, arguing it should be overruled entirely. Justice Scalia wrote separately, sharply criticizing the joint opinion's reliance on stare decisis and arguing that abortion is a political question for legislatures, not courts, to resolve.
Dobbs v. Jackson Women's Health Organization
Justice Breyer, joined by Justices Sotomayor and Kagan, wrote a lengthy dissent arguing that the majority had abandoned fifty years of precedent and stripped women of a fundamental right. The dissent contended that the Glucksberg test was inappropriate for rights involving bodily autonomy and that the majority's historical analysis was flawed. The dissent warned that the decision's logic threatened other substantive due process rights, including contraception, same-sex intimacy, and same-sex marriage.
Obergefell v. Hodges
Chief Justice Roberts dissented, arguing that the majority was not interpreting the Constitution but redefining marriage, a question that should be left to democratic processes. Justice Scalia dissented sharply, calling the opinion a threat to American democracy. Justice Thomas dissented, arguing that the Due Process Clause protects only against government restraints on liberty, not entitlements to government benefits. Justice Alito dissented on originalist grounds.
Lawrence v. Texas
Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented vigorously. Scalia argued that the majority was overruling a 17-year-old precedent without adequate justification and that the decision called into question all morals legislation. He warned that the opinion's logic would lead inevitably to the recognition of same-sex marriage, a prediction that proved accurate twelve years later in Obergefell.
Plessy v. Ferguson
Justice Harlan wrote one of the most famous dissents in Supreme Court history, declaring that the Constitution is color-blind and that the law regards man as man, and takes no account of his surroundings or of his color when his civil rights are guaranteed by the supreme law of the land. Harlan presciently warned that the decision would prove as pernicious as the Dred Scott case.
Korematsu v. United States
Justice Murphy dissented, calling the exclusion order a legalization of racism and arguing that it fell into the ugly abyss of racism. Justice Jackson also dissented, warning that the principle of racial discrimination in criminal procedure validated by the Court lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Justice Roberts dissented as well, arguing Korematsu was convicted for being present in the state where he was born.
Regents of the University of California v. Bakke
Justice Brennan's partial dissent, joined by White, Marshall, and Blackmun, argued that intermediate scrutiny should apply to benign racial classifications designed to remedy past discrimination and that the Davis program should be upheld under this standard. Justice Marshall's separate opinion provided an extensive historical account of racial discrimination in America.
Grutter v. Bollinger
Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas, dissented, arguing that the law school's concept of critical mass was functionally equivalent to an unconstitutional quota. Justice Thomas's dissent drew on Frederick Douglass's writings to argue that racial preferences are harmful to the very minorities they purport to help, constituting a form of paternalism.
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
Justice Sotomayor, joined by Justice Kagan, dissented, arguing that the majority's decision rolled back decades of precedent and precedent of this Court that permitted race-conscious admissions to foster diversity and remedy past discrimination. Justice Jackson dissented as well, providing an extensive historical account of racial inequality and arguing that ignoring race in admissions will not eliminate racial inequality but will entrench it.
Tinker v. Des Moines Independent Community School District
Justice Black dissented, arguing that the Court was usurping the authority of school officials to maintain order and discipline. He contended that the armbands did cause disruption by distracting other students and that courts should not second-guess the reasonable judgments of school administrators.
Texas v. Johnson
Chief Justice Rehnquist, joined by Justices White and O'Connor, dissented, arguing that the American flag's unique status as a national symbol justified special protection and that flag burning is not essential to any exposition of ideas. Justice Stevens also dissented, arguing that the government's interest in preserving the flag's symbolic value was sufficient to support the prosecution.
Citizens United v. Federal Election Commission
Justice Stevens wrote a lengthy 90-page dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, arguing that corporations are not natural persons and that the Founders did not intend the First Amendment to protect corporate political spending. Stevens contended that the majority's ruling would unleash a torrent of corporate money into elections and corrupt the democratic process.
District of Columbia v. Heller
Justice Stevens dissented, arguing that the Second Amendment protects only a militia-related right to bear arms and that the majority's individual rights interpretation is unsupported by the text, history, and precedent. Justice Breyer also dissented, arguing that even if the Amendment protects an individual right, the D.C. restrictions were permissible under an interest-balancing approach, which the majority expressly rejected.
Civil Procedure
Pennoyer v. Neff
Justice Hunt dissented, arguing that the Oregon statute authorizing service by publication was a valid exercise of state legislative power and that the procedure followed was sufficient to confer jurisdiction over nonresidents with property in the state.
World-Wide Volkswagen Corp. v. Woodson
Justice Brennan dissented, arguing that the majority's approach was too restrictive and that the defendants placed their products into the stream of commerce knowing they might reach any state. He contended that when a product causes injury in a forum state, the interests of the state and the injured plaintiff should weigh heavily in the jurisdictional analysis.
Daimler AG v. Bauman
Justice Sotomayor concurred in the judgment but disagreed with the majority's 'at home' test. She argued that the majority's approach was too restrictive and that the Court should have resolved the case by holding that the exercise of jurisdiction would be unreasonable, rather than by narrowing the general jurisdiction test itself.
Bristol-Myers Squibb Co. v. Superior Court of California
Justice Sotomayor dissented, arguing that BMS's extensive activities in California, combined with its nationwide marketing of Plavix, created sufficient contacts for specific jurisdiction. She warned that the decision would impede the efficient resolution of mass tort litigation by preventing plaintiffs from consolidating their claims in a single forum.
Ford Motor Co. v. Montana Eighth Judicial District Court
Justice Gorsuch concurred in the judgment but wrote separately, joined by Justice Thomas, questioning the majority's reliance on the 'relate to' language. He argued that the majority's approach was vague and suggested that the original understanding of the Fourteenth Amendment might support a broader basis for jurisdiction. Justice Barrett took no part in the decision.
Erie Railroad Co. v. Tompkins
Justice Butler dissented, joined by Justice McReynolds, arguing that the question of overruling Swift had not been briefed or argued by the parties and that the doctrine of stare decisis counseled against overturning nearly a century of precedent without full adversarial consideration.
Hanna v. Plumer
Justice Harlan concurred in the result but wrote separately to argue that the majority's analysis was too permissive. He believed the test should focus on whether the choice between the federal and state rule would substantially affect the primary decisions of parties — i.e., whether the federal rule would affect behavior outside the courtroom.
Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.
Justice Ginsburg dissented, joined by three Justices, arguing that Section 901(b) was a substantive limit on remedies tied to New York's decision to create statutory penalties. She contended that applying Rule 23 to override New York's limitation would abridge substantive rights and encourage forum shopping, as plaintiffs would flock to federal court to bring class actions that state courts would not allow.
Bell Atlantic Corp. v. Twombly
Justice Stevens dissented, joined by Justice Ginsburg, arguing that the majority abandoned the established notice pleading standard without adequate justification. He contended that the existing tools of case management and summary judgment were sufficient to address concerns about discovery costs and that heightened pleading requirements would close the courthouse doors to meritorious claims.
Ashcroft v. Iqbal
Justice Souter dissented, joined by Justices Stevens, Ginsburg, and Breyer. Souter — who had authored Twombly — argued that the majority misapplied the plausibility standard. He contended that Iqbal's allegations, taken together, raised a plausible inference of discriminatory intent and that the majority improperly drew inferences in favor of the defendants rather than the plaintiff at the motion to dismiss stage.
Celotex Corp. v. Catrett
Justice Brennan dissented in part, arguing that the moving party should at minimum be required to review the nonmovant's case and affirmatively demonstrate that the nonmovant lacks evidence. He worried that the majority's approach made it too easy for defendants to shift the burden to plaintiffs at the summary judgment stage.
Anderson v. Liberty Lobby, Inc.
Justice Brennan dissented, joined by Justice Marshall and Chief Justice Rehnquist, arguing that importing the substantive standard of proof into the summary judgment analysis improperly transforms the judge's role and risks deciding factual disputes that should be reserved for the jury.
Matsushita Electric Industrial Co. v. Zenith Radio Corp.
Justice White dissented, joined by Justices Brennan, Blackmun, and Stevens. He argued that the majority improperly weighed the evidence and made credibility determinations at the summary judgment stage, which should be reserved for the jury. He contended that the evidence, viewed in the light most favorable to the plaintiffs, raised genuine issues of material fact about the existence of a conspiracy.
Phillips Petroleum Co. v. Shutts
Justice Stevens concurred in part and dissented in part, arguing that the Court should not have addressed the choice-of-law issue because it was not properly preserved for review.
Wal-Mart Stores, Inc. v. Dukes
Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan, arguing that the majority set too high a bar for commonality. She contended that the delegation of excessive subjective discretion, combined with evidence of a corporate culture of gender bias and statistically significant pay disparities, raised a common question suitable for class treatment. She also disagreed with the majority's holding on Rule 23(b)(2), arguing that back pay is a form of equitable relief appropriate for (b)(2) certification.
Parklane Hosiery Co. v. Shore
Justice Rehnquist dissented, arguing that the Seventh Amendment's right to a jury trial was violated because the SEC enforcement action was tried to a judge, not a jury. He contended that allowing the bench-trial findings to bind Parklane in a subsequent jury trial effectively deprived Parklane of its jury trial right on the preclusion issues.
Contracts
Jacob & Youngs, Inc. v. Kent
Justice McLaughlin dissented, arguing that the builder contracted to use Reading pipe and failed to do so. He maintained that the express terms of the contract should be enforced as written, and the builder should not be excused from full performance simply because the deviation was unintentional. The dissent viewed the majority's approach as undermining the certainty of contractual obligations.
Peevyhouse v. Garland Coal & Mining Co.
Justice Irwin dissented vigorously, arguing that the restoration promise was not incidental but was a central part of the bargain and a significant inducement for the Peevyhouses to lease their land. The dissent maintained that the mining company had received the full benefit of the lease and should not be permitted to escape its explicit obligations. Justice Irwin argued that applying the diminution-in-value measure effectively allowed the mining company to breach with impunity and denied the landowners the benefit of their bargain.
Williams v. Walker-Thomas Furniture Co.
Judge Danaher dissented, arguing that the court should not remake contracts for the parties and that the legislature, not the judiciary, was the proper body to address concerns about oppressive consumer contracts. He expressed concern that the majority's approach would create uncertainty in commercial transactions and undermine freedom of contract.
Sherwood v. Walker
Justice Sherwood (no relation to the plaintiff) dissented, arguing that the parties contracted for a specific, identified cow and that the mistake about her breeding capacity was a mistake about quality or value, not substance. The dissent maintained that the cow was the same animal regardless of whether she was pregnant, and that allowing rescission based on the seller's buyer's remorse after discovering the cow was more valuable than expected would undermine the certainty of contracts.
Lenawee County Board of Health v. Messerly
Justice Fitzgerald dissented, arguing that the 'as is' clause should not be read to cover a defect as fundamental as an illegally installed sewage system that rendered the entire property uninhabitable. He contended that the 'as is' clause was intended to cover minor defects visible upon inspection, not hidden violations that destroyed the essential purpose of the purchase.
Torts
Palsgraf v. Long Island Railroad Co.
Judge Andrews wrote a vigorous dissent arguing that negligence is not relative to the individual but rather is a matter of whether the defendant's conduct was unreasonable. He advocated a broader proximate cause analysis, arguing that everyone owes a duty of care to the world at large and that liability should extend to all injuries that are the proximate result of negligent conduct, not just those to foreseeable plaintiffs.
Sindell v. Abbott Laboratories
Justice Richardson dissented, arguing that the majority abandoned the fundamental tort requirement of causation. He contended that market share liability imposes liability on defendants who may not have caused the plaintiff's injury and that the judicial branch should not create such radical new theories of liability. He argued this was properly a matter for legislative action.
Tarasoff v. Regents of the University of California
Justice Clark dissented, arguing that the duty to warn would undermine the therapeutic relationship, deter patients from seeking treatment, and discourage therapists from treating potentially dangerous patients. He contended that the duty was unworkable because therapists cannot reliably predict violent behavior and that the majority's ruling would ultimately cause more harm than it prevented.
BMW of North America, Inc. v. Gore
Justice Scalia, joined by Justice Thomas, dissented, arguing that the Due Process Clause does not provide a substantive right to a particular standard of punitive damages and that the three-guidepost test was unworkable and lacked foundation in the Constitution's text or history. Justice Ginsburg also dissented, arguing that the Court should defer to state procedures for controlling excessive verdicts.
Katko v. Briney
Justice Larson dissented, arguing that the majority's rule allowed trespassers and thieves to sue property owners who attempted to protect their property. He contended that property owners should have broader rights to defend their homes and possessions, particularly when they have been repeatedly victimized by break-ins.
Vincent v. Lake Erie Transportation Co.
Justice Lewis dissented, arguing that the damage was caused by the storm, not by the defendant's conduct, and that the defendant should not be liable for an act of God. He contended that the defendant had no realistic alternative and should not be penalized for acting reasonably in an emergency.
Thing v. La Chusa
Justice Broussard dissented, arguing that the majority's strict rules were arbitrary and that a mother who arrives at the scene moments after the accident and sees her injured child suffers the same type of emotional distress as one who witnesses the accident itself. He argued that the flexible Dillon approach better served the interests of justice.
New York Times Co. v. Sullivan
Justices Black and Goldberg concurred but argued that the First Amendment provides an absolute, unconditional privilege to criticize the conduct of public officials, not merely a qualified privilege requiring proof of actual malice.
Snyder v. Phelps
Justice Alito dissented, arguing that the First Amendment does not give anyone the right to brutalize a grieving father at his son's funeral. He contended that the protesters specifically targeted the Snyder family and that their speech was not merely commentary on public issues but was designed to inflict maximum emotional harm on a vulnerable individual. He argued the Court's decision effectively provided no remedy for the most egregious forms of personal attack.
Criminal Law
Staples v. United States
Justice Stevens, joined by Justice Blackmun, dissented, arguing that the statute was a public welfare offense and that the majority's approach would make prosecution of firearms offenses substantially more difficult. The dissenters contended that anyone possessing a dangerous weapon should be on notice that it may be subject to regulation, and that requiring proof of knowledge of the weapon's specific characteristics imposed an unwarranted burden on the government.
Commonwealth v. Carroll
Justice Musmanno dissented, arguing that the majority's approach effectively eliminated the distinction between first-degree and second-degree murder by making premeditation meaningless. He contended that genuine premeditation requires some period of actual reflection and that an instantaneous killing in the heat of passion should be classified as second-degree murder or voluntary manslaughter.
State v. Norman
Justice Martin dissented, arguing that the majority applied an unrealistic standard to the circumstances of battered women. The dissent contended that traditional self-defense doctrine was developed with male confrontational violence in mind and that the imminence requirement should be adapted to account for the cyclical nature of domestic abuse. In the dissent's view, the evidence of battered spouse syndrome supported a reasonable belief that lethal harm was inevitable, making the threat effectively imminent even though the abuser was sleeping.
Tennessee v. Garner
Justice O'Connor, joined by Chief Justice Burger and Justice Rehnquist, dissented, arguing that the majority's rule was unworkable and would endanger police officers by requiring them to make split-second judgments about a fleeing suspect's dangerousness. The dissent contended that the common law fleeing felon rule was a reasonable means of law enforcement that should not be displaced by the Court.
In re Winship
Chief Justice Burger dissented, arguing that the majority's holding was an unwarranted intrusion into state juvenile justice systems. He contended that the rehabilitative purpose of juvenile proceedings justified a lower standard of proof and that imposing criminal procedural requirements would transform juvenile courts into adversarial arenas, undermining their reformative mission.
Jackson v. Virginia
Justice Stevens concurred in the judgment but expressed concern that the majority's standard might be too difficult for lower courts to apply consistently. He favored a clearer articulation of the standard that would give more guidance to reviewing courts.
Pinkerton v. United States
Justice Rutledge dissented, arguing that the majority's rule went too far in imposing liability without proof of personal participation or knowledge of the specific substantive acts. He contended that the conspiracy charge itself adequately punished the agreement and that adding liability for all substantive offenses was disproportionate and unfair.
Robinson v. California
Justice White dissented, arguing that the statute could be construed as punishing the regular use of narcotics rather than the bare status of addiction. He contended that the majority's distinction between status and conduct was difficult to apply and that the statute was a reasonable exercise of the state's police power to combat drug abuse.
Powell v. Texas
Justice Fortas, joined by Justices Douglas, Brennan, and Stewart, dissented, arguing that Robinson's logic required the prohibition of punishing a chronic alcoholic for being drunk in public because the defendant's condition made it impossible for him to refrain from drinking and from being in public while intoxicated. The dissent contended that the plurality's distinction between status and conduct was artificial when applied to a compulsive condition like chronic alcoholism.
Lambert v. California
Justice Frankfurter dissented, arguing that the majority's decision undermined the settled principle that ignorance of the law is no defense. He contended that the registration requirement was a reasonable exercise of the police power and that convicted felons are on notice that their status may subject them to additional legal obligations. He warned that the decision would create confusion about when knowledge of the law is constitutionally required.
Property
Pierson v. Post
Justice Livingston dissented, arguing that the case should have been submitted to a panel of experienced hunters rather than decided by reference to ancient legal authorities. He contended that a rule granting rights to the pursuer with a reasonable prospect of capture would better incentivize the socially useful activity of fox hunting and discourage the kind of unsportsmanlike interception Pierson engaged in.
Kelo v. City of New London
Justice O'Connor's dissent argued that the majority's decision effectively eliminated any meaningful limit on government takings, as virtually any lawful use of property would generate some incidental public benefit such as taxes and jobs. She warned that the decision would disproportionately harm politically weak communities whose properties would be taken for the benefit of those with more political influence. Justice Thomas wrote a separate dissent arguing for a return to the original public meaning of 'public use,' which he contended required actual use by the public.
Penn Central Transportation Co. v. New York City
Justice Rehnquist dissented, joined by Chief Justice Burger and Justice Stevens, arguing that the landmarks law imposed a disproportionate burden on Penn Central by singling out the terminal for special restrictions that benefited the public. Rehnquist contended that the cost of preserving a landmark should be spread across the community through eminent domain and compensation rather than borne by individual property owners. He argued the TDRs were an inadequate substitute for just compensation.
Lucas v. South Carolina Coastal Council
Justice Blackmun dissented, arguing that the majority created an arbitrary categorical rule based on the degree of value diminution. He contended that the state's interest in protecting the coast from erosion and storm damage was a legitimate exercise of the police power that should be analyzed under the Penn Central framework. Justice Stevens also dissented, criticizing the categorical approach as disconnected from the underlying policy concerns of takings law.
Van Valkenburgh v. Lutz
The dissent argued that Lutz's 30-plus years of continuous, open, and notorious occupation of the lot — including building structures, cultivating gardens, and using the property as his own — clearly satisfied all the requirements for adverse possession. The dissenters contended that the majority's interpretation was overly technical and that Lutz's statements in the earlier proceeding should not be dispositive when viewed in context.
Nahrstedt v. Lakeside Village Condominium Association
Justice Arabian dissented, arguing that the majority's rigid test sacrificed individual rights to community conformity. He contended that the restriction should be judged by its reasonableness as applied to the specific facts, and that banning indoor cats that cause no disturbance was unreasonable and an unwarranted intrusion on the owner's use of her property.
Stambovsky v. Ackley
Justice Smith dissented, arguing that the majority's decision was inconsistent with New York's adherence to caveat emptor and that the buyer had a duty to investigate the property. The dissent contended that the majority was creating a new exception to caveat emptor that would generate uncertainty about what kinds of non-physical conditions sellers must disclose.
Evidence
Daubert v. Merrell Dow Pharmaceuticals, Inc.
Chief Justice Rehnquist, joined by Justice Stevens, concurred in part and dissented in part. He agreed that Frye was superseded but criticized the majority for going beyond the question presented and issuing abstract guidelines. He expressed concern that the majority's factors were vague and would prove difficult for trial judges to apply in practice.
Crawford v. Washington
Chief Justice Rehnquist, joined by Justice O'Connor, concurred in the judgment but objected to overruling Roberts. He argued that the Roberts framework was workable and that the majority's testimonial approach would create significant uncertainty about what constitutes a 'testimonial' statement.
Davis v. Washington
Justice Thomas concurred in the judgment in Davis but dissented in Hammon, arguing that the primary purpose test was too broad and that only statements involving a degree of formality and solemnity -- such as affidavits, depositions, and prior testimony -- should be considered testimonial.
Ohio v. Roberts
Justice Brennan, joined by Justice Marshall, dissented, arguing that the prosecution had not made a sufficient showing of unavailability. They contended the prosecution's efforts to locate Isaacs were inadequate, failing to check with her employer, school, or other contacts beyond her parents.
Bruton v. United States
Justice White, joined by Justice Harlan, dissented, arguing that the majority underestimated the jury's ability to follow limiting instructions and that the decision would create practical problems for joint trials. He proposed that redaction of the confession to remove the defendant's name would provide adequate protection.
Tome v. United States
Justice Breyer, joined by Chief Justice Rehnquist and Justices O'Connor and Thomas, dissented. He argued that the text of Rule 801(d)(1)(B) does not impose a premotive requirement and that the rule should be read to permit the admission of any prior consistent statement that is relevant to rebut a charge of fabrication, regardless of when it was made.
Old Chief v. United States
Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented, arguing that the prosecution has the right to present its case with the richness and power of evidence that allows jurors to make the case their own. She contended the majority's approach improperly interfered with prosecutorial discretion and would create a slippery slope of defendant-forced stipulations.
Williamson v. United States
Justice Kennedy, joined by Chief Justice Rehnquist and Justice Scalia, concurred in the judgment but disagreed with the majority's narrow definition of 'statement,' arguing that the Rule should be read to cover the entire narrative when the overall thrust of the declaration is against the declarant's interest. Justice Stevens dissented, arguing for a broader reading.
Idaho v. Wright
Justice Kennedy, joined by Chief Justice Rehnquist and Justices White and Blackmun, dissented. He argued that corroborating evidence should be considered in assessing trustworthiness, reasoning that the majority's approach was too restrictive and would exclude reliable evidence in child abuse cases where the child cannot testify.
Bourjaily v. United States
Justice Blackmun, joined by Justice Brennan and Justice Marshall, concurred in part. Justice Stevens concurred in the judgment. There was no formal dissent, but Justices expressed reservations about bootstrapping and the potential for circularity in using the statement to prove its own admissibility.
Upjohn Co. v. United States
Chief Justice Burger concurred separately, arguing that the Court should have adopted a clear rule rather than a flexible, case-by-case approach. He was concerned that the open-ended approach would generate uncertainty.
Swidler & Berlin v. United States
Justice O'Connor, joined by Justice Scalia and Justice Thomas, dissented. She argued that the privilege should yield when the client is deceased and the information is needed in a criminal investigation. She proposed a balancing test weighing the importance of the information against the impact on the attorney-client relationship.
Rock v. Arkansas
Chief Justice Rehnquist, joined by Justices White, O'Connor, and Scalia, dissented. He argued that the per se rule was a reasonable exercise of state authority to exclude unreliable evidence and that the majority had improperly elevated the right to testify above other evidentiary interests.
Green v. Bock Laundry Machine Co.
Justice Blackmun concurred in the judgment, reaching the same result but through the absurdity doctrine. Justice Kennedy also concurred. There was no formal dissent.
Beech Aircraft Corp. v. Rainey
Justice Rehnquist concurred in part and dissented in part, raising concerns about the breadth of the majority's reading and arguing that some limits should be placed on the types of opinions admissible under the exception.
Kumho Tire Co. v. Carmichael
Justice Stevens concurred in part and dissented in part. He agreed that Daubert applies to all experts but disagreed with the majority's conclusion that the district court did not abuse its discretion in excluding the expert's testimony. He argued the expert's methodology was sufficiently reliable to be presented to the jury.