“Holmes, J., dissenting.” That phrase is known by every student of the law. Among other things, it refers to a 1919 opinion that Justice Oliver Wendell Holmes penned in a famous First Amendment case – Abrams v. United States. The “best test of truth,” the jurist opined therein, “is the power of thought to get itself accepted in the competition of the market.” This celebrated paean to free speech liberty arose in the context of a dissent Holmes wrote on behalf of several Russian dissidents charged with violating the Sedition Act of 1918. He strongly opposed the Court's affirmation of a twenty-year sentence for the dissidents, who had distributed leaflets calling for a general strike to prevent shipment of arms to Russia. In this and other matters, Holmes “wholly disagree[d] with the argument of the government” and the majority of the Justices.

Notably, judicial dissent is a case of institutionalized opposition. That is, dissent is a vital part of the tradition of appellate decision making. In that sense, it may not operate in the same conceptual quarters as other far riskier acts that might be labeled as dissent. Still, whatever one makes of this phenomenon, few would contest that it is a paradigmatic example of dissent, if only because it is expressly labeled so. However the word “dissent” is used, then, it must at least include an expression of judicial divergence from the majority opinion of a court.