Presentation to the Harvard Club of Washington, D.C., on December 17, 2009.
Copyright © 2010 by Hon. Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States
On the utility of dissenting opinions, I will mention first their in-house impact. My experience teaches that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation…
(יז) כָּל מַחֲלֹקֶת שֶׁהִיא לְשֵׁם שָׁמַיִם, סוֹפָהּ לְהִתְקַיֵּם. וְשֶׁאֵינָהּ לְשֵׁם שָׁמַיִם, אֵין סוֹפָהּ לְהִתְקַיֵּם. אֵיזוֹ הִיא מַחֲלֹקֶת שֶׁהִיא לְשֵׁם שָׁמַיִם, זוֹ מַחֲלֹקֶת הִלֵּל וְשַׁמַּאי. וְשֶׁאֵינָהּ לְשֵׁם שָׁמַיִם, זוֹ מַחֲלֹקֶת קֹרַח וְכָל עֲדָתוֹ:
(17) Every dispute that is for the sake of Heaven, will in the end endure; But one that is not for the sake of Heaven, will not endure. Which is the controversy that is for the sake of Heaven? Such was the controversy of Hillel and Shammai. And which is the controversy that is not for the sake of Heaven? Such was the controversy of Korah and all his congregation.
Menachem Meiri (Catalonia, 1249-1306), Beit HaBechira
The argument between Hillel and Shammai: In their debates, one of them would render a decision and the other would argue against it, out of a desire to discover the truth, not out of cantankerousness or a wish to prevail over his fellow. An argument not for the sake of Heaven was that of Korach and his company, for they came to undermine Moses, our master, may he rest in peace, and his position, out of envy and contentiousness and ambition for victory.
(8) Moses said further to Korah, “Hear me, sons of Levi. (9) Is it not enough for you that the God of Israel has set you apart from the community of Israel and given you access to God, to perform the duties of God's Tabernacle and to minister to the community and serve them? (10) Now that God has advanced you and all your fellow Levites with you, do you seek the priesthood too?
(28) And Moses said, “By this you shall know that it was God who sent me; that they are not of my own devising: (29) if these men die as all men do, it was not God who sent me. (30) But if God brings about something unheard-of, so that the ground opens its mouth and swallows them up with all that belongs to them, you shall know that these men spurned God.” (31) Scarcely had he finished speaking when the ground burst asunder, (32) and the earth opened its mouth and swallowed them up with their households, all Korah’s people and their possessions. (33) the earth closed over them and they vanished from the midst of the congregation.
(ה) וְלָמָּה מַזְכִּירִין דִּבְרֵי הַיָּחִיד בֵּין הַמְרֻבִּין, הוֹאִיל וְאֵין הֲלָכָה אֶלָּא כְדִבְרֵי הַמְרֻבִּין. שֶׁאִם יִרְאֶה בֵית דִּין אֶת דִּבְרֵי הַיָּחִיד וְיִסְמֹךְ עָלָיו, שֶׁאֵין בֵּית דִּין יָכוֹל לְבַטֵּל דִּבְרֵי בֵית דִּין חֲבֵרוֹ עַד שֶׁיִּהְיֶה גָדוֹל מִמֶּנּוּ בְחָכְמָה וּבְמִנְיָן. הָיָה גָדוֹל מִמֶּנּוּ בְחָכְמָה אֲבָל לֹא בְמִנְיָן, בְּמִנְיָן אֲבָל לֹא בְחָכְמָה, אֵינוֹ יָכוֹל לְבַטֵּל דְּבָרָיו, עַד שֶׁיִּהְיֶה גָדוֹל מִמֶּנּוּ בְחָכְמָה וּבְמִנְיָן:
(5) And why do they record the opinion of a single person among the many, when the halakhah must be according to the opinion of the many? So that if a court prefers the opinion of the single person it may depend on him. For no court may set aside the decision of another court unless it is greater than it in wisdom and in number. If it was greater than it in wisdom but not in number, in number but not in wisdom, it may not set aside its decision, unless it is greater than it in wisdom and in number.
...The law is always in accordance with the majority; the only reason the words of a single dissenting voice are mentioned among the majority is in case they are needed in a given hour and can be relied upon. The Sages say, "The only reason the words of a single dissenting voice are mentioned among the majority is that from one person ruling 'Pure!' and another ruling 'Impure, as Rabbi Eliezer said!', they can then say to him, 'Have you really heard this in the name of Rabbi Eliezer?'"
(ח) הוּא הָיָה אוֹמֵר, אַל תְּהִי דָן יְחִידִי, שֶׁאֵין דָּן יְחִידִי אֶלָּא אֶחָד. וְאַל תֹּאמַר קַבְּלוּ דַעְתִּי, שֶׁהֵן רַשָּׁאִין וְלֹא אָתָּה:
(8) He used to say: judge not alone, for none may judge alone save one. And say not “accept my view”, for they are free but not you.
Bartenura's commentary on this: He was wont to say: Do not judge alone. [Even though an expert judge may do so, it is of the ways of chasiduth not to do so. (And this, only when the litigants did not accept him to judge over them; but when they did, he may judge alone, even in the spirit of chasiduth)]; for there is only One who judges alone. And do not say [to your colleagues, who dissent with your judgments] "Accept my opinion," [for I am an expert, and without you I could have judged alone,] for they are permitted (to assert their opinions) and not you, [for since you had them join you, it is proper that the majority view prevail.]
Ruth Bader Ginsburg
"Dissents speak to a future age. It's not simply to say, 'My colleagues are wrong and I would do it this way.' But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow."