Does a dissent have the "force of law"?

Chief Justice Roberts and Justice Thomas disagree about the value of separate writings in Georgia v. Public Resource.Org, Inc.


Today the Supreme Court decided Georgia v. Public Resource.Org, Inc. The Court held that under the government edicts doctrine, the annotations beneath the statutory provisions in the Official Code of Georgia Annotated are ineligible for copyright protection. My co-blogger noted the unusual 5-4 voting alignment. Chief Justice Roberts wrote the majority opinion, joined by the four most junior justices: Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justices Thomas dissented, joined by Justice Alito, and in part, by Justice Breyer. Justice Ginsburg wrote a separate dissent, joined by Justice Breyer.

The majority and dissent disagreed on many points. For example, was it relevant that the annotations lacked the "force of law"? Chief Justice Roberts concluded this factor was not relevant. Why? Because concurrences and dissents, which also lack the "force of law," cannot be copyrighted. The Chief explained:

Banks, following Wheaton and the "judicial consensus" it inspired, denied copyright protection to judicial opinions without excepting concurrences and dissents that carry no legal force. 128 U. S., at 253 (emphasis deleted). As every judge learns the hard way, "comments in [a] dissenting opinion" about legal principles and precedents "are just that: comments in a dissenting opinion." Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 177, n. 10 (1980). Yet such comments are covered by the government edicts doctrine because they come from an official with authority to make and interpret the law.

Here is the full quote from Footnote 10 of Railroad Retirement Bd. v. Fritz (1980):

The comments in the dissenting opinion about the proper cases for which to look for the correct statement of the equal protection rational-basis standard, and about which cases limit earlier cases, are just that: comments in a dissenting opinion.

Roberts may have some personal familiarity with this case. Justice Rehnquist wrote the majority opinion in December 1980. At the time, a young John Roberts was his law clerk.

Justice Thomas vigorously disagreed with the majority on this point:

The majority finds it meaningful, for instance, that Banks prohibited dissents and concurrences from being copyrighted, even though they carry no legal force. Ante, at 15. At an elementary level, it is true that the judgment is the only part of a judicial decision that has legal effect. But it blinks reality to ignore that every word of a judicial opinion—whether it is a majority, a concurrence, or a dissent—expounds upon the law in ways that do not map neatly on to the legislative function. Setting aside summary decisions, the reader of a judicial opinion will always gain critical insight into the reasoning underlying a judicial holding by reading all opinions in their entirety.

Thomas further explained his viewed in footnote 6, which Justice Breyer dissented from:

Understanding the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied in future judicial opinions.6

6For instance, this Court has not overruled Lemon v. Kurtzman, 403 U. S. 602 (1971), which pronounced a test for evaluating EstablishmentClause claims. But a reader would do well to carefully scrutinize the various opinions in American Legion v. American Humanist Assn., 588 U. S. ___ (2019), to understand the markedly different way that this precedent functions in our current jurisprudence compared to when it was first decided. Moreover, sometimes a separate writing takes on canonical status, like Justice Jackson's concurrence regarding the executive power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634–638 (1952) (opinion concurring in judgment and opinion of the Court); see also Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J.,concurring) (reasonable expectation of privacy Fourth Amendment test). Still other times, the reasoning in an opinion for less than a majority of the Court provides the explicit basis for a later majority's holding. See, e.g., McKinney v. Arizona, 589 U. S. ___, ___ (2020) (slip op., at 5) (discussing Ring v. Arizona, 536 U. S. 584, 612 (2002) (Scalia J., concurring)); Estelle v. Gamble, 429 U. S. 97, 102 (1976) (incorporating into the majority the Eighth Amendment "evolving standards of decency" test first announced in Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Even " 'comments in [a] dissenting opinion,' " ante, at 15, sometimes reemerge as the foundational reasoning in a majority opinion. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019) (discussing Nevada v. Hall, 440 U. S. 410, 433–439 (1979) (Rehnquist, J., dissenting)); Lawrence v. Texas, 539 U. S. 558, 578 (2003) ("JUSTICE STEVENS' [dissenting] analysis, in our view, should have been controlling in Bowers  [v. Hardwick, 478 U. S. 186 (1986),] and should control here"). These examples, and myriad more, demonstrate that the majority treats the role of separate judicial opinions in an overly simplistic fashion.

Justice Thomas, who is often in dissent, may a different vantage point than the Chief.

NEXT: Federalist Society Executive Branch Review Week

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  1. “Moreover, sometimes a separate writing takes on canonical status, like Justice Jackson’s concurrence regarding the executive power in Youngstown Sheet & Tube Co. v. Sawyer”

    This alone decides this specific issue in Thomas’s favor.

    1. I cannot disagree.
      I find myself not liking the term ‘force of law,’ because force implies an immediacy that may not exist even in the Youngstown concurrence.

      I might say a dissent is a part of the law of the land, even if it’s not currently operational.

      1. The funny thing is Thomas is using canonical, well reasoned separate opinions, to glorify his repeated publication of ideosyncratic garbage in separate opinions.

        1. Thomas is crazy on substance, but great at the craft of opinion writing.

          1. Yeah but because his separate positions are all extremist and crazy, they are never going to become Youngstown v. Sawyer type concurrences.

    2. No it doesn’t. Just because future jurists follow it and it gains force of law doesn’t mean it had it at the time. Same goes for dissents that eventually convince future justices to overrule the majority opinion.

      1. IANAL but it seems to me the dissent defines a lower (upper?) bound for what the majority ruled. If the majority says 50 years is too much and the dissent says 20 years is too much, that provides some insight into the majority opinion.

        1. I’m not sure the context of your example. That reads to me more like it would be a concurrence.

          I’m not suggesting that in SOME instances a concurrence or dissent won’t help in interpreting the majority opinion (and sometimes a concurrence is the binding opinion on lower courts under the Marks rule). But that is only is some cases, not all, and doesn’t have the force of law such that lower courts are bound by it. It is what some would call persuasive authority rather than binding authority.

          Force of law is very specific, it means that IS the law. A dissent never is the law, that is why it’s a dissent. A concurrence in rare instances (Marks rule as said above) does have the force of law. Other times it only serves as persuasive authority which may gain traction and become the law (Jackson’s concurrence mentioned above). But until a court put that in the majority opinion it did not have the force of law. A lower court was free not to follow it.

          1. My IANAL example is just made up.

        2. I think it can sometimes provide evidence of what the majority is thinking, but it has to be very context-specific. Often, you’ll see the majority respond to the dissent or reject the dissent’s assertion. If the majority rules in favor of X and the dissent says “I think Y should have won because of 1, 2, and 3,” that might be evidence in another case where somebody tries to claim the case is distinguishable because of 1, 2, and 3. You can point to the dissent to say that those facts were present in the other case and already rejected by the controlling precedent.

  2. I would never cite a dissent as controlling law in a brief, but they are useful to use in oral arguments when you have a “threshold” case that could fall either way depending on case law. Find a good dissent authored by a judge that is cited by someone on the panel frequently and it can be pretty darn persuasive. I’ve even had a few colleagues slip in dissents argued like controlling law when they think the panel will sort of ignore settled law (happens more often then not) thinking that the en banc court of court of last resort will give it a pass.

  3. It sounds like you are saying that writings with “force of law” can not have copyright protection, but with no “force of law” they can be copyrighted. If that’s what you mean, then say so. Not all of us here are lawyers.

    1. IANAL, but my understanding is that US copyright law on it’s face says that copyright can not exist in any works created by the government itself.

      1. 17 USC 105 specifies that works of the United States Government are not copyright eligible. The copyright office, under rule 313.6(C)(2) will not register certain state works.

        1. Perhaps it’s time to amend the copyright act to exclude works of state and local governments as well.

  4. Assuming Justice Thomas is right about the value of dissents in understanding the law, it seems like the argument ends up supporting the majority position. Don’t the legislative annotations also help the reader understand fully the meaning of the law in question? If so, wouldn’t the same rationale for excluding the dissent from copyright protection apply to the annotations as well?

    1. That was my thought, too. I hope someone here gives a fuller explanation about this.

  5. I think there are two issues here — (a) is it legally relevant and (b) is it copyrightable — and the latter is the relevant question here.

    In other words, does Federal Copyright law permit *anyone* to copyright this information? The copyright holder has the right to arbitrarily deny access to the copyrighted material — the psychology profession does this on a routine basis.

    Hence would it be permissible for the State of Georgia to deny access to this material?

    1. You gotta payayay for it. Access granted!

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