the behavior - lee epsteinepstein.wustl.edu/research/courses.robertscourtelp6.pdf1. richard a....

T H E

BehaviorO F

Federal Judges

A THEORETICAL AND EMPIRICAL STUDY

OF RATIONAL CHOICE

Lee Epstein

William M. Landes

Richard A. Posner

Harvard University Press

Cambridge, Massachusetts London, En gland

2013

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255

c h a p t e r 6

Dissents and Dissent Aversion

This chapter uses our model of judicial behavior to explore dis-sent in the Supreme Court and the courts of appeals, emphasizing

what we have referred to in earlier chapters as “dissent aversion,”1 which sometimes causes a judge not to dissent even when he disagrees with the decision. Our data for the Supreme Court are all the Court’s opinions in the 1963, 1980, and 1990 terms, with the exception of 5 cases decided by an equally divided vote and 11 cases in which there was no majority opin-ion. We chose those years to give us opinions in three different Chief Jus-ticeships, those of Warren, Burger, and Rehnquist. Our court of appeals data consist primarily of a random sample of 1025 published opinions (about 30 per circuit) in the 1989–1991 period, drawn from the Songer database. We selected that period so that we could obtain a nearly complete his tory of citations to each majority and dissent-ing opinion, since court of appeals opinions are rarely cited more than 20 years after they were decided.2 (The citation data are from Lexis and

1. Richard A. Posner, How Judges Think 31–34 (2008), introduced the term and pre-sented an informal model.

2. A recent study shows that judges are about 75 percent less likely to cite a 20- year- old Supreme Court or court of appeals precedent than a recent one. Ryan C. Black and James F. Spriggs II, “The Depreciation of U.S. Supreme Court Precedent” (Jan. 3, 2011), http://polisci.wustl.edu/files/polisci/black_spriggs_depreciation.pdf (visited Dec. 9, 2011).

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256 Dissents and Dissent Aversion

Westlaw searches.) We excluded 58 opinions because of the coding er-rors in the Songer database discussed in chapter 4, and 7 en banc deci-sions, which, however, we discuss separately. Our Songer sample unfor-tunately includes only 80 dissenting opinions, fewer than 8 percent of the decisions in the database. But we also draw on the Sunstein database, and that gives us another 422 such opinions.

Costs and Bene fits of Dissenting

Judges are assigned majority opinions to write and must do so in order to remain in good standing with their colleagues, but dissenting is optional. Since writing a dissenting opinion requires effort, a judge will not dissent unless he anticipates a bene fit that offsets that cost. One bene fit is to un-dermine the in flu ence of the majority opinion, with which by assumption he disagrees, although possible offsets are that a dissent will draw atten-tion to the majority opinion and may even magnify its sig nifi cance by ex-aggerating its potential scope in order to emphasize the harm that it will do. And undermining a majority opinion with which one disagrees is not an end in itself; the aim is to promote one’s own legal views. The main bene fits of dissenting thus derive from the in flu ence of the dissenting opinion, and, a closely related point, the enhanced reputation of the judge who writes the dissent. In our empirical analysis we proxy this bene fit by the number of citations to the dissenting opinion.3 If dis-senting opinions are rarely cited, this suggests that the bene fits from dis-senting are small. Another possible bene fit of a dissenting opinion in a court of appeals, however, is that the Supreme Court is more likely to grant certiorari in a case in which there is a dissent.4 Dissents can also

3. On the use of citation counts to mea sure the in flu ence of judicial opinions and judges, see, for example, James H. Fowler et al., “Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court,” 15 Po lit i cal Analysis 324 (2007). See also Richard A. Posner, “An Economic Analysis of the Use of Citations Analysis in the Law,” 2 American Law and Economics Review 381 (2000); William M. Landes, Lawrence Lessig, and Michael E. Solimine, “Judicial In flu ence: A Citation Analysis of Federal Court of Appeals Judges,” 27 Journal of Legal Studies 271 (1998); Richard A. Posner, Cardozo: A Study in Rep-utation 80–91 (1990).

4. Gregory A. Caldeira, John R. Wright, and Christopher J. W. Zorn, “Sophisticated Vot-ing and Gate- Keeping in the Supreme Court,” 15 Journal of Law, Economics, and Or ga ni za-

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Dissents and Dissent Aversion 257

trigger con gres sional scrutiny and even con gres sional overruling of the rule or principle announced in the decision.5

Dissent aversion is bound to vary in intensity among judges. A judicial opinion has a self- expressive character, as well as its instrumental effect in resolving the case at hand and in flu enc ing the course of the law. A judge who derives great utility from expressing his views may, especially if he finds himself on a court in which those views are shared by few of the other judges, derive a bene fit from frequent dissenting that exceeds the cost he incurs in effort and in impairment of collegiality. Dissents can bur-nish a judge’s reputation. Holmes’s judicial reputation rests to a consid-erable extent on his dissents, as does that of the second Justice Harlan—a lonely dissenter on the Warren Court; his dissent rate was 27 percent, versus the average Justice’s dissent rate of 18 percent. To explain dissents we must first explain why judges are unable to resolve disagreements when they confer to decide the case, whether by compromise or by surrender, and avoid a public spat. Personality is doubtless a factor. But personality to one side, the more heterogeneous a panel—which is to say, the greater the difference among judges along such dimensions as education, religion, race, gender, social class, and career before judging—the less likely the judges are to think alike, to understand and trust each other, to have similar priors, and in short to be predisposed to agree.6 This implies that disagreements over technical points of law, where the judges are reasoning from shared prem ises and there is there-fore apt to be a right and a wrong answer, are less likely to result in dis-sents than ideological disagreements are; the latter are more dif fi cult to resolve by discussion or compromise, being rooted more in values, expe-

tion 549 (1999); Ryan C. Black and Ryan J. Owens, “Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence,” 71 Journal of Politics 1062 (2009); Adam Hal-lowell, “Colleagues and Contexts: Dissent Rates on the United States Courts of Appeals” (Harvard College, Dept. of Economics, March 19, 2009, on file with the authors).

5. William N. Eskridge, Jr., “Overriding Supreme Court Statutory Interpretation Deci-sions,” 101 Yale Law Journal 331 (1991).

6. For evidence supporting these points but based on dissents in state rather than federal courts, see Joanna Shepherd Bailey, “Diversity, Tenure, and Dissent,” 2010 Judicial Work-shop Symposium, Duke Law Journal Legal Workshop (March 2, 2010), http://legalworkshop.org/2010/03/02/diversity- tenure- and- dissent (visited Dec. 9, 2011).


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rience, personal- identity characteristics, and temperament than in beliefs based on verifiable facts, and, for most judges, being more im por tant. Some evidence for this conjecture is presented, for the Supreme Court and the courts of appeals respectively, in Tables 6.1 and 6.2. In Table 6.1 we see how in civil liberties cases, and to a lesser extent in economic ones, as the number of dissenting votes increases, the ratio of conservative votes by conservative Justices to liberal votes by them changes. When a decision is unanimous (the first row), by defi ni tion of unanimity conservatives and liberals agree. (The ratio in the table is more than one only because over the period covered by the data there were more conservative than liberal Justices.) When unanimity is lost, the ratio rises in proportion to the number of dissenting votes. Thus, 5–4 deci-sions in civil liberties cases draw 11 times as many conservative as liberal votes by conservative Justices, while liberal Justices like Warren, Gins-burg, and Breyer vote conservatively 8 percent of the time in such cases and conservative Justices like Rehnquist and Scalia more than 90 percent. As the table also shows, the lopsided ratio persists regardless of whether the lower court decision is liberal or conservative. That is in contrast to the courts of appeals, whose judges as we know from chapter 4 are in flu-enced by the district court’s decision even if that decision has an ideo-logical slant different from that of the appellate judges. We infer that closely divided decisions in the Supreme Court tend to be ones in which the ideological stakes are high, for if the division were based on technical or legalistic considerations, we would not expect it to be correlated with the Justices’ ideology. But while a high rate of dissent correlated with ideological differences (presumed from the party of the appointing President) is indicative of ideological decision- making, a low rate need not indicate the opposite (legalist decision- making). Apart from dissent aversion, an ideologically motivated court may exhibit a low dis-sent rate simply because all the judges share the same ideology. Turning to the courts of appeals in Table 6.2, we need first to make a clarifying distinction between a per- panel dissent rate and a per- judge dissent rate, the latter being our main interest. The odds of a dissent on a panel of three judges are roughly three times the odds of a dissent by a particular judge if all the judges have the same propensity to dissent and the probability of a dissent by a particular judge is low. Thus, the per-

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panel probability of a dissent if each judge has a 2 percent probability of dissenting is 1 (1 .02)3 5.9 percent. If each has a 15 percent prob-ability of dissenting, the per- panel probability of a dissent is 1 (1 .15)3 38.6 percent, which is less than three times 15 percent. Since the per- judge dissent rate is closer to 2 percent than to 15 percent, we’ll as-

Table 6.1 Dissenting Votes of Liberal (L), Moderate (M), and Conservative (C) Justices, 1953–2008

Civil Liberties Cases Economic Cases

Percentage of

Conservative Votes Ratio Percentage of

Conservative Votes Ratio

Dissenting Votes L M C C/L L M C C/L 0 .364 .373 .418 1.15 .307 .315 .331 1.081 .336 .464 .628 1.87 .406 .464 .504 1.242 .270 .661 .794 2.94 .287 .599 .603 2.103 .169 .670 .846 5.01 .268 .620 .640 2.394 .083 .653 .908 10.94 .202 .642 .749 3.71

Conservative Lower Court Decision

Percentage of




Liberal Lower Court Decision

Percentage of




Note: The conservatives are Minton, Burton, Clark, Reed, Harlan, Burger, Rehnquist, Scalia, Kennedy, Thomas, Roberts, and Alito; the moderates are Jackson, Whittaker, Frankfurter, Stewart, Powell, White, Blackmun, and O’Connor; and the liberals are Goldberg, Warren, Fortas, Black, Douglas, Brennan, Marshall, Ginsburg, Stevens, Breyer, and Souter. These clas si fi ca tions are explained in chapter 3.

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sume for the sake of simplicity that the probability of a dissent in a three- judge panel is three times the probability that any particular member of the panel will dissent. By aggregating the Sunstein data on dissenting votes in Table 6.2 to the panel level, we derive a per- panel dissent rate of 9.1 percent.7 This exceeds the dissent rate (7.8 percent) in our Songer sample. Since the Sunstein sample, unlike the Songer sample, is limited to cases expected to have above- average ideological stakes, the difference in dissent rates is evidence that dissents are indeed more likely in ideologically charged cases. Because both databases exclude unpublished opinions, they greatly exaggerate the overall average dissent rate per court of appeals judge, as we’ll see. The dissent rate of R judges in panels composed entirely of Rs is only 1.9 percent, but it rises to 6.5 percent if the panel has two Ds. It is also higher when the panel is reversing rather than af firming the district court decision. For example, in a panel of all Rs the dissent rate is 1.2 percent if the panel is af firming but 2.7 percent if it’s reversing. Dissenting is more

7. We do this by multiplying the average of the percentage of dissenting votes for Rs and Ds weighted by their respective number of votes ( (2.48% 8507 3.89% 5421) / 13928) 3.03 percent) by 3 (the panel size).

Table 6.2 Dissents and Panel Effects, Sunstein Data, 1995–2008

Percentage of Dissents

R and D Composition of Other Panel Members

Total Votes Votes to Reverse

District CourtVotes to Af firm District Court

R D R D R D RR 1.89

(3287)5.94

(1986)3.65(905)

8.04(597)

1.22(2376)

5.07(1380)

RD 1.73(3980)

2.74(2483)

3.01(1197)

2.50(841)

1.19(2764)

2.88(1634)

DD 6.45(1240)

2.63(952)

11.75(417)

2.91(413)

3.79(819)

2.43(536)

All Panels 2.48(8507)

3.89(5421)

4.68(2519)

4.38(1851)

1.56(5959)

3.66(3550)

Notes: 1. The sum of the votes in the reversed plus af firmed columns is smaller than the sum of all votes because we lack information on whether the appellate court af firmed or reversed the district court in cases in which there were 49 votes in the database. 2. The number of votes is in parentheses.

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inviting when the panel is reversing because the dissenter then has an ally in the district court—the judge voting the same way as he—upon whose reasoning he can draw, as well as invoking the deference that appellate courts are supposed to accord to most rulings by district judges, as we noted in chapter 5. This effect is not found in Table 6.1 for the Supreme Court, but the difference is consistent with greater dissent aversion in the courts of appeals as a result of these courts’ heavier workload, and, as we’ll see, the lesser in flu ence of dissents in those courts. Dissenting imposes an effort cost on the majority too, and sometimes a reputation cost as well if the dissenting opinion criticizes the majority forcefully. To minimize the dissenter’s criticisms and retain the votes of the other judge in the majority, the author of the majority opinion often will revise his opinion to meet the points made by the dissent. The effort involved in these revisions, and resentment at criticism by the dissenting judge, may impose a collegiality cost on him by making him less well liked by his colleagues, which may make it harder for him to persuade other judges to join his majority opinions in future cases.8 This assumes that judges refuse to treat such costs as bygones to be ignored in future inter-actions with the dissenter. But such refusal is rational, for by withholding or reducing collegiality in the future the judges in the majority punish the dissenter, and this may deter him from dissenting as frequently. We there-fore predict that dissents will be less frequent in smaller courts of appeals, because any two of its judges will sit together more frequently and thus have a greater incentive to invest in collegiality.9

The effort cost of writing a dissent will tend to be greater as the court’s caseload grows heavier;10 likewise the ill will generated by a dissent. We therefore expect that, other things being equal, the number of dissents

8. See, for example, Collins J. Seitz, “Collegiality and the Court of Appeals,” 75 Judica-ture 26, 27 (1991).

9. Stefanie A. Lindquist, “Bureaucratization and Balkanization: The Origins and Effects of Decision- Making Norms in the Federal Appellate Courts,” 41 University of Richmond Law Review 659, 695–696 and tab. 5 (2007).

10. Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek, Judging on a Collegial Court 61 (2006), advance a similar hypothesis. By a court’s “caseload” we mean caseload per judge, a mea sure of each judge’s workload, rather than the absolute number of the court’s cases.


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will be inverse to a court’s caseload. The Supreme Court’s caseload is lighter than that of the courts of appeals, especially relative to its staff. A court of appeals judge has 3 or 4 law clerks and issues 54 opinions a year,11 making the ratio of opinions to law clerks between 18 to 1 and 13.5 to 1. In the 2009 term (the last term that we have studied), the average Justice issued 8 majority and 13 separate (dissenting plus concurring) opinions, for a ratio of opinions to law clerks of only 5 to 1 (each Justice has 4 law clerks). It’s true that Supreme Court law clerks are burdened with screening thousands of petitions for certiorari each year. But court of appeals law clerks work on their judges’ unpublished as well as published opinions, and on average the former are more numerous. Supreme Court law clerks are generally more experienced and more carefully selected than court of appeals clerks, moreover, and work even harder, in confor-mity to the Court’s current institutional culture; so the quality- adjusted and time- adjusted ratio of Supreme Court opinions to law clerks is even lower than 5 to 1. The Justices’ lighter adjusted caseload reduces the opportunity cost of dissenting—and this apart from the fact that the Supreme Court tends to limit its consideration to one or two issues presented in the cases that it hears, and it has the aid of an appellate court’s opinion and more thor-ough and careful briefing and argument than are common in lower courts; the Court is inundated nowadays with amicus curiae opinions, many of high quality. Because concurring and dissenting opinions are optional, the fact that so high a proportion of Supreme Court opinions—62 per-cent—are concurring or dissenting rather than majority opinions (and even at the Supreme Court level most concurring and dissenting opin-ions are pretty ephemeral, as we’ll see, with the exception of dissents by such famous dissenters as Holmes, Brandeis, and the second Harlan) is evidence that the Court’s workload is indeed light. And although the average Supreme Court case is more dif fi cult than the average court of appeals case, often the dif fi culty is not analytical com-plex ity but indeterminacy, either because the case presents ideological is-

11. The average number of signed opinions per active court of appeals judge in 2008. See U.S. Courts, “Federal Court Management Statistics, 2008, Courts of Appeals,” www.uscourts.gov/cgi- bin/cmsa2008.pl (visited Dec. 9, 2011).

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sues on which the Justices are irreconcilably at odds or because the or-thodox materials of legalist analysis are missing or hopelessly ambiguous or contradictory. Indeterminacy may not increase workload, but it is an in de pen dent reason for expecting a higher dissent rate in the Supreme Court than in the courts of appeals. This is an implication of the selection effect discussed in chapter 5; the more dif fi cult a case is to decide, the more likely it is to rise to the top of the judicial hierarchy. Caseload affects the bene fits of dissenting as well as the costs. The heavier a court’s caseload, the less likely the court is to reexamine its prec-edents. Deciding a case on the basis of precedent reduces the effort cost of judicial decision- making and also reduces caseload by making the law more predictable. The less likely a court is to reexamine its precedents, the less effect a dissenting opinion is likely to have, because the majority opinion will be a precedent and will therefore be unlikely to be reexam-ined in a future case. The Supreme Court’s lighter caseload should make the Court more willing to reexamine its precedents, and this should in-crease the bene fit to Supreme Court Justices of dissenting. Moreover, when the Court unsettles the law by overruling or narrowing a precedent, the caseload consequences are felt mainly by the lower courts. The po lit i cal nature of so many of the Court’s cases and the fact that no higher court can discipline the Supreme Court’s decision- making make the Justices chafe at having to follow precedents created by their predecessors. (Justice Thomas has made clear that he does not follow precedent.) There is also more room for disagreement in a court of nine judges than in one of three, so we can expect more dissents as more judges hear a case. And the larger the panel and therefore the greater the likeli-hood that several judges, not just one, will be dissenting, the lower the cost of dissent, because a dissenting judge may be making another judge or judges (his fellow dissenter or dissenters) happy. A single dissenting judge has no allies. Against all this it might be argued that the collegiality costs of dissent-ing are greater in the Supreme Court because the Justices sit with each other in ev ery case, whereas court of appeals judges, especially in the larger circuits, sit with a given colleague infrequently. One might think that the very high dissent rate in the Supreme Court would make life un-bearable, driving up dissent aversion. Indeed there have been periods


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when the Justices have had poor relations with each other (the 1940s, for example, and the Burger Court years in the 1970s and early 1980s), and other times when they have had good relations, such as the present. But these fluc tua tions in collegiality do not appear to be related to the fre-quency of dissents, and animosities having sources other than frequent dissenting might of course stimulate dissents. Moreover, when a court’s workload is light, as the Supreme Court’s is nowadays (as further evidenced by the heavy extracurricular activities of the current Justices, noted in chapter 1), so that the incremental cost of a dissent to a judge in the majority is slight, the judge is unlikely to be greatly irritated by the dissent; the dissent will be imposing only a slight cost on him. And beyond some point a high dissent rate may ac tually re-duce dissent aversion: judges in the majority will have less cause for irrita-tion if ev ery one dissents a lot, while judges who don’t dissent will feel like wallflowers. The preceding analysis leads us to expect a higher dissent rate in the Supreme Court than in the courts of appeals—and so we find. As shown in Table 6.3, the dissent rate is 57.4 percent in the Supreme Court and only 2.7 percent in the courts of appeals, though the rate varies widely across circuits and also over time (see minimum and maximum columns). These are “all opinion” dissent rates; that is, all dissents divided by ter-minations on the merits, though there is slight understatement because Lexis and Westlaw, the sources of “all opinion” dissents, do not ac tually report all unpublished court of appeals opinions (that is, opinions that the issuing court does not deem im por tant enough to warrant publica-tion in the Federal Reporter—and publication there is a signal that the court regards its decision as having the weight of precedent). The under-statement is slight, however, because dissents are extremely rare in such cases. The last column in the table changes the denominator for calculating the court of appeals dissent rate from terminations on the merits to termi-nations on the merits plus procedural terminations. These are termina-tions, mainly of prisoner civil rights suits, because of some procedural defect, such as failure to invoke federal jurisdiction or to file a timely ap-peal. They are mainly unpublished, summary orders, without full brief-ing or oral argument, and very rarely generate a dissent, which is why the

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court of appeals dissent rate falls (to 2 percent from 2.7 percent) when they are included in terminations. The much higher dissent rates in the Songer and Sunstein samples provide a more meaningful basis for com-parison with the Supreme Court than the all- opinions or all- terminations fig ures; judges rarely bother to dissent publicly from an unpublished de-

Table 6.3 All-Opinion Dissent Rates in the Courts of Appeals and the Supreme Court, 1990–2007

Court Average Minimum Maximum

Average with Procedural

Terminations Included

Circuits

1st 1.7% 0.8% 3.1% 1.4%2d 1.7 0.6 3.8 1.33d 2.4 1.5 3.2 1.84th 2.5 1.8 3.4 1.85th 1.2 0.5 1.7 0.86th 4.8 3.5 6.2 3.57th 3.0 1.6 4.4 2.28th 4.1 2.6 6.1 3.29th 4.1 3.1 4.8 3.010th 2.3 1.6 3.3 1.911th 1.0 0.6 2.4 0.7D.C. 4.6 2.4 6.6 3.6

All 2.7 — — 2.0Supreme Court 57.4% 45.6% 68.7%

Notes: 1. Court of Appeals Dissent Rates: We tabulated the number of opinions with dissents in each circuit (both published and unpublished opinions) in each year from 1990 through 2007 from Lexis searches and divided by the number of cases terminated on the merits in each circuit each year. See U.S. Courts, “Judicial Caseload Statistics,” tab. B, various years, www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/FederalJudicialCaseloadStatistics.aspx (visited Dec. 9, 2011). The “average” for each circuit is the percentage of dissents in each year weighted by the number of cases terminated on the merits in the circuit that year. “Minimum” denotes the lowest and “maximum” the highest annual dissent rates in the 1990–2007 period. The average for all circuits is the average of the individual circuits weighted by the number of cases terminated on the merits in each circuit. 2. The column labeled With Procedural Terminations Included computes the average dissent rate in a circuit as the number of dissents divided by the sum of terminations on the merits and procedural terminations. 3. The Supreme Court Dissent Rate is the percentage of orally argued opinions with at least one dissenting vote (from the Spaeth database for the terms 1990–2007). The minimum and maximum rates are the lowest and highest annual rates, as in the case of the courts of appeals. 4. We also collected Westlaw data on court of appeals opinions with dissents. The number of dissents rec orded by Westlaw (12,909) was very close to the number reported by Lexis (13,288); the difference is too small to affect our analysis.


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cision, because in most courts such a decision cannot be cited as a prece-dent and is therefore of little consequence. The high rate of dissenting opinions in the Supreme Court is a recent phenomenon. As shown in Fig ure 6.1, the rate was low until the early 1940s, when it jumped suddenly and very steeply, even though almost all the Justices by then had been appointed by the same President, Franklin Roosevelt. We conjecture that the surge was attributable to the Justices’ having observed that many dissents by Holmes, Brandeis, Stone, and Cardozo had become law, whereas previously dissents had rarely become law. Holmes became the most prominent Supreme Court Justice since John Marshall primarily on the strength of his dissents. The perceived value of dissenting shot up. A more common explanation for the surge in dissents is poor manage-ment of disagreement among the Justices by Stone, who became Chief Justice in 1941.12 Stone was indeed a notable flop as Chief Justice, but we would expect that to have led his successors back to the consensus model of Chief Justices like Taft and Hughes. Some less transitory development

12. See note 6 in chapter 2.

.8

.6

.4

.2

0

Frac

tion

1800 1850 1900 1950 2000

dissentsconcurrences

Fig ure 6.1 Dissenting and Concurring Opinions in Supreme Court, 1950–2010 Terms

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(or developments) would be a better candidate for the cause of a perma-nent increase in the dissent rate; the increased prestige of Supreme Court dissents may have been that cause. Concurring opinions, like dissents, are much more frequent in the Su-preme Court than in the courts of appeals. There were one or more con-curring opinions in 40.3 percent of Supreme Court cases in 1953–2008, compared to only 0.6 percent in our court of appeals sample.13 Many con-curring opinions express disagreement with the majority opinion, albeit disagreement about grounds or reasoning or implications for future cases rather than about outcome. It is therefore no surprise that, as shown in Fig ure 6.1, the number of concurring opinions surged in the early 1940s along with dissents and are now almost as common as the latter. We need to consider the possibility that because the likelihood of dis-agreement among judges grows with the size of the panel, the higher dis-sent rate in the Supreme Court is an artifact of the difference between a panel of nine judges and one of three. Assume that all judges on a panel of size n have identical and in de pen-dent probabilities of voting in favor of the appellant, A (with probability p), and the appellee, B (with probability (1 p)). Let ( 1) denote the willingness of a judge to dissent when he disagrees with a majority of the judges on the panel; in a case of extreme dissent aversion, will be close to zero. We assume for the moment that is the same for all judges, as we are trying to determine the pure effect of panel size on the propensity to dissent. Since the probability of a unanimous decision is pn (1 p)n, the probability of at least one dissent in a panel of size n is Pd [1 pn (1 p)n]. Pd increases both with and with panel size, because Pd/

0 and Pd/ n pnln p (1 p)nln (1 p) 0, provided that p 1. Pd is maximized when p .5 and decreases symmetrically as p deviates from .5 (holding panel size constant). That is, Pd/ p npn 1

n(1 p)n 1 0 when p .5. The intuition behind this result is that there is a greater probability of dissent if the judges think the case is close—and a p of .5 implies that the case is a toss- up.

13. Lee Epstein, William M. Landes, and Richard A. Posner, “When and Why Judges Dis-sent: A Theoretical and Empirical Analysis,” 3 Journal of Legal Analysis 101, 107 (2011).


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Table 6.4 shows how the probability of at least one dissent depends on panel size, the judges’ probability of voting for the appellant (p), and dis-sent aversion (or its converse, ). For example, increasing panel size from three to nine increases the likelihood of a least one dissent by 25 to 50 percent if dissent aversion is held constant, while a reduction from 90 percent dissent aversion ( .10) to zero ( 1) increases the proba-bility of at least one dissent tenfold if panel size is held constant. That probability also increases as the probability of the court’s siding with the appellant decreases from .90 to .50. If p were 1 or 0, there would be no dissents, because all the judges would vote for either the appellant (p 1) or the appellee (p 0). Table 6.5 extends the analysis to ideologically divided judges and shows that such a division increases the likelihood of a dissent. For con-stant dissent aversion (that is, reading across the rows of the table), the probability of dissent in a nine- judge panel is roughly twice that in a three- judge one. This is the pure panel- size effect. But we know that the ac tual dissent rate in the Supreme Court is closer to 10 times the rate in the courts of appeals—and more than 20 times if unpublished court of ap-peals decisions are included. These ratios are powerful evidence that dis-sent aversion is indeed greater in the courts of appeals than in the Su-preme Court. One reason is that the Supreme Court “panel” in the period covered by our data was always mixed—that is, always contained Justices ap-

Table 6.4 Probability of at Least One Dissent in a Panel of Size n

Panel Size (n)

p 3 9

.90 .10 .027 .061

.90 .25 .068 .153

.90 1.00 .270 .613

.70 .10 .063 .096

.70 .25 .158 .240

.70 1.00 .630 .960

.50 .10 .075 .100

.50 .25 .188 .249

.50 1.00 .750 .996 S

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pointed by Presidents of different po lit i cal parties; there were never nine Rs or nine Ds. The dissent rate in mixed rather than in all court of appeals panels provides the proper comparison to the Supreme Court, and indeed we find a higher dissent rate in the mixed panels in our sam-ple of 1025 published court of appeals opinions: 8.6 percent (54 dis-sents out of 626 opinions) versus 6.5 percent in the other panels (26 out of 399). But the difference is not statistically sig nifi cant, and the higher percentage is still far lower than the dissent rate in the Supreme Court. En banc decisions are the closest counterpart in the courts of appeals to Supreme Court decisions in point of panel size, ideological diversity, dif fi culty or importance, and, related to dif fi culty and especially impor-tance, the fact that the court is selecting a case for decision rather than being forced to decide it. So it’s no surprise that only in the seven en banc decisions in the Songer sample is the dissent rate in the courts of appeals comparable to that in the Supreme Court. There were dissents in three of those decisions—43 percent. But a sample of seven is too small to enable a statistically sig nifi cant inference to be drawn. We have therefore searched Westlaw for all en banc decisions in the five- year period 2005–2010. The results are presented in Table 6.6. The dissent rate—77 percent—turns out to be much higher than the dissent rate in our sample of seven (illustrating the pitfalls of in-ference from small samples) and substantially higher than in the Supreme Court as well. But this does not refute the claim that dissent aversion is greater in the courts of appeals than in the Supreme Court. For one

Table 6.5 Probability of at Least One Dissent in a Panel of Size n with Ideologically Divided Judges

Panel Size and Composition

pR pD 2Rs & 1D 2Ds & 1R 5Rs & 4Ds 4Rs & 5Ds .90 .70 .10 .043 .055 .086 .089.90 .70 .25 .108 .138 .215 .222.90 .70 .70 .301 .399 .601 .623.90 .70 1.00 .430 .550 .858 .890

Note: pR and pD are the probabilities of dissent by an R and a D respectively.


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thing, the average number of judges who par tic i pate in en banc hearings is roughly 12.5.14

More im por tant is the fact that, as shown in the table, cases are heard en banc in fewer than one quarter of 1 percent of all cases decided by the courts of appeals, which is evidence of strong dissent aversion. Apart from the extra work involved (with very few exceptions, the en banc hear-ing is a rehearing—the case had already been heard and decided by a three- judge panel), judges are highly sensitive to the rejection of their de-cisions by their colleagues, as distinct from strangers, such as the Justices of the Supreme Court (who are not colleagues even if the judge is person-ally acquainted with some or all of the Justices). As a result, frequent en bancs take a heavy toll on collegiality, and so a case is very unlikely to be heard en banc unless members of the court disagree strongly with the panel decision; and with strong disagreement virtually a precondition to

14. Computed from Table 6.5, except that in the Ninth Circuit, though there are 29 autho-rized judgeships, only 11 of the judges (the chief judge, plus 10 other judges chosen at ran-dom) constitute a panel to hear cases en banc. We say “roughly 12.5” because judgeships may be vacant and also because a se nior judge who was on the panel the decision of which is being reheard en banc is authorized to par tic i pate in the rehearing.

Table 6.6 Dissents in En Banc Cases in Federal Courts of Appeals, 2005–2010

Circuit

Number of Authorized

Active Judgeships

Number of Decisions

on the Merits

Number of En Banc Decisions

2005–2010 Found in Our

Westlaw Search

En Banc Decisions as Percentage of Decisions on

the Merits

Number of En Banc

Decisions with Dissent

En Banc Dissent Rate

1st 6 5157 10 0.19 8 .802d 13 16,072 6 0.04 5 .803rd 14 11,672 15 0.12 9 .604th 15 14,348 8 0.06 7 .885th 17 21,148 22 0.10 18 .826th 16 12,888 29 0.23 27 .937th 11 7679 12 0.16 7 .588th 11 10,431 33 0.32 28 .859th 29 30,523 88 0.26 70 .8010th 12 7584 15 0.20 9 .6011th 12 16,714 19 0.11 10 .53D.C. 12 2763 7 0.22 5 .71Total 179 156,979 264 0.17 203 .77

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a case being decided en banc, the dissent rate is bound to be very high. In the Supreme Court, in contrast, the decision to hear a case, while likely to re flect disagreement with the lower court (as suggested by the two- thirds reversal rate), need not re flect a disagreement among the Justices about the merits, though of course it often does. Our analysis might seem to imply that dissent aversion is nonexistent in the Supreme Court. But we know that this is not true, not only from the Court’s determination to present a united front in the segregation cases of the 1950s and 1960s but also from our analysis in chapter 3 of unani-mous Supreme Court decisions, where we found evidence of at least faint dissent aversion. We must also consider the bearing of what has been called vote “fluidity”—a Justice’s changing his vote between the post- argument conference and the issuance of the decision. In the 1969–1985 terms, at least one Justice changed his vote in 36.6 percent of the cases,15 though an individual Justice switched, on average, in just 7.5 percent of the cases.16 The switchers usually joined the majority. For example, when Justice White initially voted with the majority, he ultimately joined the dissenters only 3.3 percent of the time, but when he initially voted with the minority he ultimately joined the majority 22.5 percent of the time.17

Although vote fluidity could be the result of the persuasiveness of the majority opinion rather than of dissent aversion, it could also result from institutional pressure to decide a substantial fraction of cases unani-mously in order to make the Supreme Court seem more lawlike and less po lit i cal than it is. Such institutional dissent aversion has been a conspic-uous feature of continental European judiciaries, which traditionally for-bade public dissents. We cannot even be certain that there is less dissent aversion in the Su-preme Court than in the courts of appeals. Recall that the overall dissent rate in the courts of appeals is less than 3 percent, the dissent rate in the Songer sample of published court of appeals decisions is 7.8 percent, the dissent rate in the Sunstein sample of published court of appeals cases

15. Forrest Maltzman and Paul J. Wahlbeck, “Strategic Policy Considerations and Voting Fluidity on the Burger Court,” 90 American Po lit i cal Science Review 581, 587 (1996).

16. Id. at 588 (tab. 1). 17. Id.


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drawn from ideologically charged subject- matter categories is 9.1 per-cent, and the dissent rate in en banc cases is 77 percent. This ladder of dissent rates suggests that case characteristics dominate the decision to dissent (though in the case of en banc dissents, panel size is almost cer-tainly a factor also), and this in turn opens up the possibility that the higher dissent rate in the Supreme Court re flects primarily the character-istics of the cases that the Court decides to hear.

The Effect of Panel Composition

To examine the effect of panel composition on the frequency of dissents we need to consider more carefully why a majority of the judges on a panel would ever yield to the wishes of the minority member (we assume a three- judge panel). One possibility is that the odd man out acts as a whistleblower.18 Another is that he may bring to the panel’s deliberations insights that the other judges, having different priors, overlooked.19

This of course presupposes deliberation. There is less deliberation among judges, at least in the common un der stand ing of the word, than outsiders assume (a point we come back to in the next chapter). Henry Friendly, the ablest and most in flu en tial court of appeals judge since Learned Hand, was a frequent dissenter. “During his nearly twenty- seven years on the bench—from September 1959 to March 1986—Judge Friendly wrote not only 800 or so published majority opinions for his own court but also 103 dissents and 88 opinions that were either concur-rences or partial dissents. All of these separate opinions may be fairly treated as dissents to some degree. Even when an opinion began with the phrase ‘Friendly, J., concurring’ and even when Judge Friendly joined in the panel’s judgment, his rationale usually differed from the majority’s. A different rationale matters, of course, because it often points to a different

18. Frank B. Cross and Emerson H. Tiller, “Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals,” 107 Yale Law Journal 2155, 2175–2176 (1998).

19. See Matthew Spitzer and Eric Talley, “Left, Right, and Center: Strategic Information Acquisition and Diversity in Judicial Panels,” Journal of Law, Economics, and Or ga ni za tion (forthcoming). S

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result on somewhat different facts.”20 Why was Friendly unsuccessful in persuading his colleagues in so many cases? Ideological tensions seem not to have been a major factor. The reason (or a reason) may have been that the Second Circuit, on which Friendly sat, did not deliberate in the usual manner during his tenure on the court. The judges did not rou-tinely confer after hearing oral argument, although often they exchanged post- argument memos in advance of assignment of the majority opinion to one of the judges on the panel.21 This meant that a judge was likely to commit himself in writing before hearing from the other judges, and once a judge had done that, he would be reluctant to change his vote—he would lose face. Obviously a key factor in flu enc ing the likelihood of a dissent is differ-ences among panel members in intensity of preference for a particular outcome, as proxied by the ideological distance between the dissenting judge and his majority colleagues with respect to the particular case—the greater the distance, the likelier a dissent.22 If one judge feels strongly that the case should be decided one way rather than another, while the other two judges, though inclined to vote the other way, do not feel strongly, one of them may decide to go along with the third to avoid creating ill will, perhaps hoping for reciprocal consideration in some future case in which he has strong feelings and the other judges do not. Once one judge swings over to the view of the dissentient judge, the remaining judge is likely to do so as well, for the same reason or because of dissent aversion. Ideological disagreement is unlike a disagreement over the best means to a shared end, because ideological disputants rarely argue from shared prem ises. A liberal on a panel with two conservatives is unlikely to pro-duce facts or arguments that will alter the ideology of his colleagues, or

20. Michael Boudin, “Friendly, J., Dissenting,” 61 Duke Law Journal 881, 882 (2012). His writing 800 published opinions implies that he heard approximately 2400 cases, and if we follow Boudin in treating his 88 concurrences or partial dissents as dissents, so that the total of his dissenting opinions was 191, this translates to a dissent rate of 8 percent.

21. See David M. Dorsen, Henry Friendly: Greatest Judge of His Era 87 (2012). 22. Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek, “Separate Opin-

ion Writing on the United States Courts of Appeals,” 31 American Politics Research 215 (2003).


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vice versa. But if he feels more strongly about how the case should be de-cided than the other judges do, this implies that he would derive greater bene fits than they from a decision of the case his way and therefore that he would be willing to incur greater costs to get his way—as by writing a dissent. His threat to dissent is thus a credible threat to impose effort and maybe humiliation costs on his colleagues. If his colleagues’ costs of de-ciding the case his preferred way are less than the bene fits to him, because they do not feel strongly about the outcome, one or both of them will give way to him. There is a parallel to jury holdouts. A juror who feels very strongly about what the verdict in the case he’s hearing should be will be willing to incur costs by protracting the jury’s deliberations. By thus imposing costs on the majority he may induce the jurors in the majority to yield to him, or at least to compromise with him. The usual requirement that a jury verdict be unanimous strengthens the holdout’s hand relative to that of the dissentient judge on a three- judge panel. And the normal pressures to conform to prevailing views in social settings, including jury delibera-tions, are weaker in appellate panels because of the long and honorable tradition of dissent. But they are not nonexistent, as we know from our find ings in chapter 4 concerning the conformity effect in the courts of appeals.

A Formal Model of Deciding Whether to Dissent

We can learn more about likely dissent behavior with the help of a formal model in which a judge’s vote depends on his view of the applicable law and precedents, his ideological leanings, panel composition, and how dissent- averse he is. Let CR and CD be the respective probabilities that a judge appointed by a Republican President and a judge appointed by a Democratic one will favor a conservative outcome in a case in which 1 CR CD 0. (We ignore case out comes in which there are no or mixed ideological stakes.) Let VR and VD be the respective probabilities that judges will actually vote for a conservative outcome. These probabilities depend not only on CR and CD but also on panel composition, the likelihood that the judge S

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will disagree with the majority, and his willingness to dissent if he dis-agrees. Thus,

VR R(CR) (1 R)[CD(1 ) CR ] (1)

VD D(CD) (1 D)[CR(1 ) CD ] (2)

where R and (1 R) are the fractions of panels with a majority of Rs and Ds, respectively, when the judge in question is an R, and D and 1 D are those fractions when the judge in question is a D. As before, is the willingness of a judge to dissent. Another way to think of is as the percentage of cases in which a judge disagrees with the majority and ac-tually dissents. We model as

(N, X/N, z) (3)

where N is the number of judges in a circuit, X/N is the circuit’s average caseload, and z are other factors in flu enc ing . We expect that the greater N is, the smaller the bene fits of collegiality will be and the greater, there-fore, the willingness of a judge to dissent. We also expect that the greater X/N is, the greater the marginal effort and collegiality cost of a dissent will be and hence the lower the incentive to dissent. Because there are no panel composition effects in the Supreme Court, equations (1) and (2) simplify to VR CR and VD CR(1 ) CD for that Court, assuming that Rs are in the majority and therefore R 1 and

D 0. If is close to one in the Supreme Court, as we believe it proba-bly is for reasons noted earlier, then Justices almost always vote according to their true ideological preferences, CR and CD. Although denotes willingness to dissent, the fraction of dissenting votes will be lower than that willingness might lead one to expect, espe-cially in the three- judge panels of the courts of appeals. Consider an R whose is 25 percent if he finds himself in disagreement with the other two judges on the panel when they are both Ds. Assume that four other judges of his court are Rs and seven are Ds. On average he will be the only


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R on the panel in 38 percent of his cases, so that the probability that he will sit with one or two other Rs will be .62. Assume further that there is a wide ideological gap between Rs and Ds—for example that CR and CD are .7 and .3. Then an R and a D will disagree 40 percent of the time. And since is 25 percent, an R will dissent in 10 percent of the cases (25 per-cent of 40 percent) in which he is the minority member of a panel. But the overall dissent rate will be lower than that because he also sits on panels in which he is in the majority. In our example an R will dissent only 3.8 percent of the time, because he sits on a panel with two Ds only 38 per-cent of the time and dissents in only 10 percent of the cases decided by that panel. In contrast, a D will have a dissent rate of 1.8 percent, because he sits with two Rs in only 18.1 percent of the cases. The average dissent rate for all the judges in our example is the weighted average of the dissent rates of the five Rs and the seven Ds and is therefore 2.6 percent, which is much lower than the of 25 percent that we started with. But the number of dissents as a fraction of decided cases is (approximately) three times 2.6 percent, because there are three votes in each case. So if each judge hears 100 cases a year, making 1200 cases in a 12- judge circuit, there will be 3600 total votes, 94 of them dissenting, or 7.8 dissents per 100 decided cases. Table 6.7 shows how the dissent rate can be expected to change as panel composition, dissent aversion, and the ideological gap between Rs and Ds changes in a hypothetical 12- judge circuit. We assume for the sake of simplicity (an assumption to be relaxed shortly) that a judge dissents only when he is sitting with two judges appointed by a President of the opposite party from the one who appointed him. So if there are 10 Rs and 2 Ds, an R will sit with 2 Ds only 1.8 percent of the time, while a D will sit with 2 Rs 81.8 percent of the time. As we see in columns (5) and (6), as-suming that a judge in the minority disagrees with the majority 40 percent of the time and dissents in 25 percent of those cases, the Rs will dissent in only .2 percent of the cases and the Ds in 8 percent. In contrast, in the shaded row in the table, in which the number of Rs and Ds is equal, the dissent rate of both Rs and Ds will be 2.7 percent. If the ideological gap between Rs and Ds declines, so will the fraction of potential disagreements and therefore the dissent rate. For example, if the ideological variables CR and CD are .6 and .4 rather than .7 and .3,

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Tabl

e 6.7

D

isse

nt a

s a F

unct

ion

of W

illin

gnes

s to

Dis

sent

, Ide

olog

ical

Diff

eren

ces,

and

Cou

rt C

ompo

sitio

n

Frac

tion

of

Dis

sent

ing

Vote

sFr

actio

n of

Cas

es w

ith a

Dis

sent

ing

Vote

Cou

rt C

ompo

sitio

n

Frac

tion

of

Opp

ortu

nitie

s to

Dis

sent

in C

ircui

t

C R

.7

C D

.3C R

.7

C D

.3

C R

.6

C D

.4

.2

5

.25

.2

5

.10

2

5

1

R

(1)

D

(2

)

R

(3)

D

(4

)

R

(5)

D

(6

)

All

(7)

A

ll (8

)

All

(9)

A

ll (1

0)

102

.018

.818

.002

.082

.045

.009

.023

.091

93

.055

.655

.006

.066

.062

.012

.031

.123

84

.109

.509

.011

.051

.073

.015

.034

.145

75

.181

.382

.018

.038

.079

.016

.040

.159

66

.272

.272

.027

.027

.082

.016

.041

.163

57

.382

.181

.038

.018

.079

.016

.040

.159

48

.509

.109

.051

.011

.073

.015

.034

.145

39

.655

.055

.066

.006

.062

.012

.031

.123

210

.818

.018

.082

.002

.045

.009

.023

.091

Not

es:

1.

CR

frac

tion

of c

onse

rvat

ive

vote

s of j

udge

s app

oint

ed b

y a

Rep

ublic

an P

resi

dent

; CD

fr

actio

n of

con

serv

ativ

e vo

tes b

y ju

dges

ap

poin

ted

by a

Dem

ocra

tic P

resi

dent

;

frac

tion

of ti

mes

a ju

dge

will

dis

sent

whe

n th

e ot

her t

wo

judg

es o

n th

e pa

nel w

ere

appo

inte

d by

a P

resi

dent

of t

he o

ppos

ite p

arty

.

2. N

o sp

an o

f tim

e is

indi

cate

d fo

r thi

s tab

le b

ecau

se th

e ta

ble

is b

ased

on

our f

orm

al m

odel

rath

er th

an o

n da

ta.


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making the ideological gap .2 rather than .4, so that an R and a D will dis-agree in 20 percent rather than 40 percent of the cases in which they are on the same panel, the dissent rate will fall by a half (compare columns (7) and (9)). But the per- judge dissent rate will be low even if dissent aversion vanishes ( 1), as in column (10), and the circuit is evenly balanced between Rs and Ds, which maximizes the fraction of mixed panels and hence the occasions on which, on our assumptions, a judge would con-sider dissenting. An individual judge will dissent in only 5.4 percent of the cases (.2 .272), though there will be a dissent in 16.2 percent (3 5.4) of them. The assumption in equations (1) to (3) that a judge will dissent only if he is an R or a D on a panel in which the two other judges were appointed by a President of a different party is unrealistic, as is the assumption that all Ds are liberal in all cases and all Rs conservative in all cases. There will be cases in which (1) a judge will dissent even if the panel consists of all Rs or all Ds, or (2) one or two members of the panel will switch and sup-port the potential dissenter if the latter feels more strongly about the case than either of the other judges. And (3), sometimes the majority will nar-row the grounds of the decision, or soften the language of the opinion, to accommodate the concerns of the third judge and thereby head off a dis-sent.23 (1) will increase the dissent rate, (2) will leave it unchanged if one judge switches his vote and reduce it if both do, and (3) will reduce it. The combined effect of dissent aversion and ideological diversity is to make a judge’s voting behavior less ideological, implying that VR CR and VD CD—that is, that the difference between the ac tual votes of Rs and Ds will be smaller than would be predicted on the basis of the party of the appointing President. We therefore rewrite the equations for the judge’s voting behavior (equations (1) and (2)) as a weighted average of his ideology and the ideology of the judges in his circuit who were ap-pointed by a President of the opposite party, with the weights de pen dent

23. Cass R. Sunstein et al., Are Judges Po lit i cal? An Empirical Analysis of the Federal Judi-ciary 20–21 (2006) (tab. 2–1), presents evidence of ideological “moderation of the majority position when a panel contains two rather than three judges appointed by a president of the same party.” S

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on both the ideological composition of panels and dissent aversion. Hence

VR CR( R (1 R) ) CD(1- R)(1 ) (4)

VD CD( D (1 D) ) CR(1- D)(1 ) (5)

Ideological moderation will be observed in (4) and (5) if a judge gives a positive weight to the ideology of judges of the opposite ideology, pro-vided that the judge has at least some dissent aversion. In Table 6.8 we see that as the ratio of Rs to Ds falls, all the judges vote less conservatively when both and a judge’s own ideology are held con-stant (provided that 1). Comparing the voting behavior of judges in courts that have different ratios of Rs to Ds can therefore yield misleading inferences concerning a judge’s ideology. For example, an R in a court with 3 Rs and 9 Ds will appear to be less conservative than a D in a court of 10 Rs and 2 Ds if is less than or equal to .25. This suggests that a judge’s overall voting rec ord in the court of ap-peals may be a poor predictor of how he will vote if appointed to the Su-preme Court, where dissent aversion is weak. So consider the current Supreme Court Justices (plus the recently retired Justice Stevens) who had served on a court of appeals for a substantial period of time before their appointment to the Court. The fraction of conservative votes in our Songer sample by court of appeals judges later appointed to the Supreme Court is (number of votes in parentheses) Stevens .372 (43), Scalia .571 (35), Kennedy .421 (19), Ginsburg .371 (97), Breyer .592 (103), and Al-ito .386 (44).24 Except in the case of Stevens, these numbers are only weakly related to the fraction of the judges’ conservative votes (from the

24. We exclude Roberts, Sotomayor, Souter, and Thomas because they have very few votes in our Songer sample. Thomas has 15, Souter 3, Roberts and Sotomayor zero. We esti-mated the fraction of active Rs in a circuit by averaging the yearly fractions for the periods in which the judge served. Since circuit composition changes over a judge’s tenure, we do not know how closely the sampled votes match the average circuit composition. Nor can we match the panel composition to the judge’s votes, because the panel composition of the cases in our sample in which a judge voted may differ from the average panel composition in the circuit.


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Tabl

e 6.8

Id

eolo

gica

l Vot

ing

Fr

actio

n of

Con

serv

ativ

e Vo

tes b

y Ju

dges

App

oint

ed b

y Pr

esid

ent o

f Sam

e or

Diff

eren

t Pa

rty

Ass

umin

g Tr

ue Id

eolo

gica

l Pre

fere

nces

Are

CR

.7 a

nd C

D

.3

Cou

rt C

ompo

sitio

n

0

.2

5

.50

1

R

(1)

D

(2

)

V R

(3)

V D

(4

)

V R

(5)

V D

(6

)

V R

(7)

V D

(8

)

V R

(9)

V D

(1

0)

102

.693

.627

.694

.545

.696

.464

.7.3

93

.678

.562

.684

.497

.689

.431

.7.3

84

.656

.503

.667

.453

.678

.402

.7.3

75

.628

.453

.646

.414

.664

.376

.7.3

66

.591

.408

.618

.382

.646

.354

.7.3

57

.547

.372

.585

.354

.624

.336

.7.3

48

.496

.344

.547

.333

.598

.322

.7.3

39

.438

.322

.503

.317

.569

.311

.7.3

210

.372

.307

.455

.305

.536

.304

.7.3

Not

es:

1.

VR

frac

tion

of c

onse

rvat

ive

vote

s by

judg

es a

ppoi

nted

by

Rep

ublic

an P

resi

dent

s; V

D

frac

tion

of c

onse

rvat

ive

vote

s by

judg

es

appo

inte

d by

Dem

ocra

tic P

resi

dent

s.

2. S

ee n

ote

2 to

Tab

le 6

.7.

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Spaeth database) in the Supreme Court: Stevens .313, Scalia .774, Ken-nedy .655, Ginsburg .274, Breyer .327, and Alito .756. Scalia and Ken-nedy, sitting with a majority of judges appointed by Democratic Presi-dents, voted more liberally than they do in the Supreme Court. Stevens and Ginsburg also sat with a majority of judges appointed by Democratic Presidents in their courts of appeals and voted liberally in both the court of appeals and the Supreme Court. Breyer sat with a majority of judges appointed by Republican Presidents in his court of appeals and voted more conservatively in that court than in the Supreme Court, while Alito also sat with a majority of judges appointed by Republican Presidents in the court of appeals but votes more conservatively in the Supreme Court than he did in that court.

Empirical Analysis

We expect a decline in judicial workload to lower the opportunity cost of dissenting and thus increase the frequency of dissents, and we also expect that the greater the judges’ ideological heterogeneity, the likelier they are to disagree and so the higher the dissent rate will be. We expect similar effects for concurring opinions. To test these hypotheses we estimate in Table 6.9 regressions from annual data on the Supreme Court for the 1953–2008 terms. The de pen dent variables are the number of dissenting opinions di-vided by the number of decisions (equation (1)), and the number of con-curring opinions also divided by the number of decisions (equation (2)).25 If the Court decides 100 cases and in 40 there is one dissenting opinion, in 20 two, and in 5 three, that makes 95 dissenting opinions in all (40 1

20 2 5 3), which is an average of .95 dissenting opinion per case. The in de pen dent variables are Caseload (the number of decisions in orally argued cases); Other Cases (decisions in nonargued cases plus a small number of decisions in original as distinct from appealed cases and

25. We also estimated regressions using alternative de pen dent variables, such as the frac-tion of cases with at least one dissenting opinion (which does not distinguish between a case with one dissenting opinion and a case with two or more such opinions), the average number of dissenting votes per opinions, and the fraction of cases with one or more concurring opin-ions. The results were similar to those reported here.


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a few cases decided by a tie vote); the standard deviation of Justices’ Segal- Cover scores; a time- trend variable that accounts for the combined effect on dissents of other factors such as the rise in the number of opin-ions dissenting from denial of certiorari, increased use of word pro cess-ing and electronic research, and increased number of law clerks; and a dummy variable for the 1953–1955 terms because of the unusually small number of opinions (50 percent below 1956 and subsequent years) is-sued in those terms, both in cases that were and in cases that were not orally argued.26

26. The number of opinions after oral argument was 84 (1953), 93 (1954), and 98 (1955), compared to 121 (1956), 127 (1957), and between 101 and 153 over the next 15 years. The number of other decisions was 4 (1953), 5 (1954), and 6 (1955), followed by 6 (1956), 28 (1957), and between 11 and 75 over the next 15 years. Several factors in conjunction may ex-plain the low number of opinions in the 1953 through 1955 terms. On September 8, 1953, right before the start of the 1953 term, Chief Justice Vinson died suddenly; Warren took the oath of of fice on the first day of the term. The Court probably wasn’t up to speed on certiorari grants. Moreover, Brown v. Board of Education, reargued on December 9, 1953, took a great deal of the Court’s time. And in 1954 Justice Jackson died at the start of the term, and he wasn’t replaced until March 1955.

Table 6.9 Regression Analysis of Log of Dissent and Concurrence Rates in the Supreme Court, 1953–2008

Log (Total Number of Dissenting

Opinions/Number of Opinions)

(1)

Log (Total Number of Concurring

Opinions/Number of Opinions)

(2)

Log Caseload .330*(2.52)

.059(0.29)

Log Other Cases .015(0.45)

.211**(3.10)

Standard Deviation of Segal-Cover Scores

.596**(3.95)

.307(0.93)

Time .004(1.94)

.017**(3.18)

Dummy 1953–1955 .351**(3.63)

.360(1.64)

Constant 8.867*(2.02)

33.912**(2.99)

R2 .34 .70Number of Observations 56 56

Note: All regressions have 56 observations and use robust standard errors.

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Since both the dissent and the caseload variables are in logarithms, the regression coef fi cient indicates that a 10 percent decrease in caseload in-creases the dissent rate by 3.3 percent. Also, the greater the ideological heterogeneity of the Justices, the greater the number of dissenting opin-ions. Of the remaining variables, only the 1953–1955 dummy variable is sig nifi cant. It has a large negative effect—a 35 percent drop in the dissent rate. But the effect is offset by the negative coef fi cient on the caseload vari-able, making the net effect on the dissent rate close to zero. The time variable in equation (2) reveals a 1.7 percent annual increase in the frequency of concurring opinions. Caseload has no sig nifi cant ef-fect on the number of concurring opinions, but Other Cases has a sig nifi-cant positive effect; we have no explanation. If we are right that a dissent imposes an effort cost on the majority be-cause the author of the majority opinion is likely to revise his opinion to address the ob jec tions raised by the dissent, this implies that majority opinions will usually be longer when there is a dissent. To test that hy-pothesis we collected data on the number of words in our Supreme Court sample and in a sample of court of appeals opinions. Our Supreme Court sample (446 cases) includes 202 cases with one dissenting opinion (45.3 percent), 60 with two or more dissenting opin-ions (13.5 percent), and 147 with one or more concurring opinions (33 percent). Table 6.10 reveals that a Supreme Court majority opinion tends to be longer if there is one dissenting opinion and longer still if there is more than one. The differences are statistically sig nifi cant for both the full sample and the 335 orally argued signed opinions when we combine all three years, and sig nifi cant in most of the individual years as well. A prob lem in interpreting these data is that the dif fi culty or importance of a case is likely to in flu ence both the length of the majority opinion and the presence and number of dissents. To isolate the effect of dissent on length we regress length on dissent, the importance of the case, and other factors that might be expected to in flu ence length:

Wsc f(Oral, Dissent1, Dissent2, Mention, Concur, Term, Subject Matter, Importance, u)

Wsc is the number of words (including words in footnotes) in the Supreme Court’s majority opinion. Oral means there was both an oral argument


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and a signed opinion, Dissent1 that there is one dissenting opinion and Dissent2 more than one, Mention that the majority opinion mentions the dissent, Concur that there is a concurring opinion. Term consists of dummy variables denoting the term of the Court (1963, 1980, or 1990) and Subject consists of dummy variables denoting subject matter. Impor-tance indicates the importance of the case, proxied by the average number of Supreme Court plus court of appeals citations to the Supreme Court majority opinion; the average number in an orally argued case is 172. The results of the regression analysis are shown in Table 6.11. Oral is sig nifi cant variable in equation (1), indicating that opinions in orally ar-gued cases are on average nearly 3000 words longer than other opinions. In equation (2), which restricts the sample to the 335 orally argued cases decided in a signed opinion, a dissenting opinion increases the length of the majority opinion by more than 1000 words if the majority mentions the dissent. If not, the effect, though still positive (277 words), is much smaller and statistically insig nifi cant, except that Dissent1 and Mention are jointly sig nifi cant in both equations. When there are two or more dis-senting opinions, not only is the majority opinion more than 1000 words longer but the difference is statistically sig nifi cant whether or not the ma-jority mentions the dissent, although a mention adds between 700 and 900 words to the opinion, depending on the equation. In both equations the importance of the case as proxied by the com-bined number of citations to the majority opinion by the Supreme Court

Table 6.10 Average Number of Words in Majority Opinions in Supreme Court Cases in 1963, 1980, and 1990 Terms (number of cases in parentheses)

All CasesSigned Opinions in Orally

Argued Cases

Number of Dissents Number of Dissents

Year 0 1 2 or More 0 1 2 or More

1963 (179)

2337(72)

2399(84)

4206*(23)

3432(44)

4059(48)

5624*(17)

1980 (143)

4530(54)

5527(71)

5570(18)

5307(41)

6082(62)

6910(14)

1990 (124)

3564(54)

4536*(51)

5884*(19)

4376(42)

4687(49)

6130*(18)

All (446)

3362(180)

4006*(206)

5146*(60)

4308(127)

5041*(159)

6177*(49)

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and the courts of appeals is positively and sig nifi cantly correlated with the length of the majority opinion. But citations by the courts of appeals alone are not sig nifi cantly correlated with the length of the Supreme Court’s majority opinion; we have no explanation. Neither Concur nor Subject Matter is sig nifi cant in any regression. The fact that concurring opinions do not elicit longer majority opinions is anomalous, since such opinions often re flect disagreement with the ma-jority’s reasoning. Not always, of course; they may address a point that the majority opinion omitted because it did not command a majority of the Justices; or they may criticize a dissent—“riding shotgun,” as it were, for the author of the majority opinion. The time dummy variables are highly sig nifi cant, indicating that ma-jority opinions were longer in both the 1980 and 1990 terms. As the

Table 6.11 Regression Analysis of Words in Supreme Court Majority Opinions in 1960, 1983, and 1990 Terms

(1) (2)

Oral 2924**(10.17)

—

Dissent1 141(0.58)

277(0.87)

Dissent2 913*(2.51)

1357**(2.93)

Mention 867*(2.63)

725(1.86)

S. Ct. Citations 91.6**(7.63)

93.8**(6.88)

Ct. App. Citations 0.721(1.51)

0.823(1.52)

Concurrences 75.6(0.32)

76.1(0.26)

1980 Term 1751**(6.52)

2056**(5.87)

1990 Term 957**(3.29)

1202**(3.29)

Subject Matter Yes YesConstant 308

(0.72)2673**(4.66)


Note: S. Ct. Citations denotes citations in subsequent Supreme Court cases to the Supreme Court’s majority opinion, and Ct. App. Citations denotes citations in subsequent court of appeals opinions to the Supreme Court’s majority opinion.


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number of decisions declined, from 179 in 1963 to 143 in 1980 to 124 in 1990, Supreme Court Justices wrote (or had their law clerks write) longer majority opinions. This may be attributable to the growth in the ratio of staff to number of cases. In 1963 the Justices had only two law clerks apiece; by 1990 they had four even though the number of majority opin-ions had declined sig nifi cantly. We turn now to dissents in the courts of appeals. We started with 500 cases randomly selected from volumes 888 to 921 of the Federal Reporter, second series. Most of the opinions in these volumes were published in 1990. We excluded 67 cases not published in that year, 21 duplicate cases, and 8 cases not decided in a published opinion. These adjustments left us with a sample of 404 cases, which we later expanded to 1025, cov-ering 1989–1991. Table 6.12 reveals that the majority opinions in our sample are on av-erage 41 percent longer when there is a dissent.27 (The comparable fig ure for the Supreme Court, calculated from Table 6.9, is 23 percent.) To cor-rect for differences in importance between cases that do and do not draw a dissent, we divide our court of appeals sample into reversals and af fir-mances. Since the former are more likely to involve dif fi cult issues, we ex-pect them to induce longer majority opinions and more dissents. The table shows that opinions reversing are indeed typically longer than opinions af firming and also more likely to draw a dissent (9.6 percent versus 6.5 percent), although only the difference in length is statistically sig nifi cant. Opinions that reverse are even longer if there is a dissent: 26 percent longer. Yet opinions that af firm are 54 percent longer if there is a dissent. This result may re flect increasing marginal effort cost, since opinions reversing are already longer than opinions af firming even when there is no dissent. To determine more rigorously the impact of dissents on the length of majority opinions in the courts of appeals, we estimate the following re-gression equation:

WCA f(Dissent, Reverse, First, Caseload, Circuit, Civil, Subject Matter, u)

The principal in de pen dent variables are Dissent, Reverse, First (meaning the case was decided for the first time rather than after rehearing or re-

27. Frank B. Cross, Decision Making in the U.S. Courts of Appeals 174 (2007), using a dif-ferent dataset, also finds that majority opinions in cases in which there is a dissent are longer.

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mand28), and Caseload (number of appellate cases decided on the merits in each circuit per year divided by the sum of active and se nior judges weighted by the number of votes by a se nior judge relative to an active one). We expect positive coef fi cients on Dissent, Reverse, and First (there are likely to be more issues to discuss when a case is heard the first time) and a negative coef fi cient on Caseload. We add circuit dummies (Circuit) to account for circuit- spe cific factors that might affect the length of pub-lished opinions, such as different circuit rules or norms on publication of opinions. And we add subject- matter variables (either Civil 1 for a civil case and 0 for a criminal one, or Subject Matter, which consists of dummy variables for respectively a criminal, civil rights, labor, economic, due pro-cess, privacy, or First Amendment case), to allow for the possibility that the type of case in flu ences the length of a majority opinion. Table 6.13 presents the regression results. We see that Dissent, Re-verse, and First have positive and highly sig nifi cant effects on the length of majority opinions. A dissent causes the length of the majority opinion to increase by roughly the same number of words (1380) as the combined effect of a decision’s being a reversal (654 words) and being the first deci-sion in the litigation (820 words). The circuit’s caseload has, as effort aversion implies, a sig nifi cant negative effect on the length of the majority opinion; an increase in the caseload from a low of 66.8 cases per judge (the average for the D.C. Circuit) to 130.1 (the mean of all circuits) re-

28. In our sample of 1025 court of appeals cases, 949 cases were decided for the first time, 9 on rehearing, 20 after remand to the district court, and 9 on remand from the Supreme Court; 34 could not be clas si fied. We assigned the value 1 only to the 949 cases decided for the first time.

Table 6.12 Words in Majority Opinions in Court of Appeals Cases, 1989–1991 (number of cases in parentheses)

Dissent All Reversed Af firmed

No 3354(945)

3799(387)

3046(558)

Yes 4733*(80)

4774*(41)

4690*(39)

All 3462(1025)

3893(428)

3153(597)

Note: Reversals include reversed, reversed in part, and vacated.


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duces the average number of words in a majority opinion by 468. Raw caseload fig ures do not re flect differences in the average dif fi culty of cases across circuits, however, and we have not tried to adjust for that differ-ence. The circuit dummy variables are jointly sig nifi cant in both equa-tions; but with circuit caseload, subject matter, and other variables held constant, only the Second and Eighth Circuits produce shorter, and the Third Circuit longer, opinions than the other circuits. We find no sig nifi-cant effects of case type. Our focus thus far has been on the costs of dissenting. We can estimate the bene fits by comparing the number of judicial citations to majority and dissenting opinions. Table 6.14 compares the number of citations in Su-preme Court and court of appeals opinions to majority and dissenting opinions of the Supreme Court. The average Supreme Court dissent is not heavily cited. A dissenting opinion in cases decided by the Court during the 1963, 1980, and 1990 terms was cited on average only .24 times by the Supreme Court and 1.54 times by the courts of appeals. There are, of course, many more court of appeals decisions than Supreme Court decisions; yet when the difference is corrected for, court of appeals judges are found to be even less likely to cite Supreme Court dissents than Supreme Court Justices are, maybe be-cause lower courts are more tightly bound to follow majority rulings by

Table 6.13 Regression Analysis of Words in Majority Opinions in U.S. Court of Appeals Cases, 1989–1991

(1) (2)

Dissent 1384**(4.65)

1382**(4.54)

Reversal 654**(4.44)

654**(4.33)

First 819**(2.73)

822**(2.70)

Civil 139(0.99)

—

Caseload 7.34**(2.49)

7.45**(2.46)

Circuit Dummies Yes** Yes**Subject-Matter Dummies No YesConstant 3829**

(6.71)3812**(6.52)

R2 .11 .12

Note: All regressions have 1025 observations and use robust standard errors.

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the Supreme Court than Supreme Court Justices are. Not only are the Justices less tethered to precedent, but because of this a number of dis-senting opinions in the Supreme Court later became law—some, indeed, landmarks of the law (such as the dissents in Plessy v. Ferguson, Lochner v. New York, Abrams v. United States, Olmstead v. United States, Miners-ville School District v. Gobitis, and Betts v. Brady) and thus de facto ma-jority opinions. The ratio of citations to a Supreme Court majority opinion to citations to the dissent in cases in which there is one dissenting opinion is on aver-age 32 to 1 in the Supreme Court but 94 to 1 in the courts of appeals. When there are two or more dissenting opinions, dissents are cited more frequently, but still rarely; the ratio falls to 19 to 1 in the Supreme Court and 49 to 1 in the courts of appeals. The regression analysis in Table 6.15 shows that the more frequently the majority opinion is cited, the more frequently the dissent is cited, and also that there are more citations in the courts of appeals to Supreme Court dissents when the Supreme Court’s majority opinion mentions the dissent and when the number of dissenting Justices is greater. But this effect is not found in citations by the Supreme Court to dissenting opinions.

Table 6.14 Citations in Majority and Dissenting Opinions to 266 Supreme Court Opinions with Dissents, 1963, 1980, and 1990 Terms

Supreme Court

Citations Court of Appeals

Citations

Mean Median Mean Median

One Dissenting OpinionMajority 7.81 5 144.96 60One Dissent 0.24 0 1.54 0Ratio 32.1 — 94.2 —

Two or More Dissenting OpinionsMajority 9.93 6 146.97 87Two or More Dissents 0.53 0 3.00 1.5Ratio 18.6 — 49.0 —

Note: There were 206 cases with one dissenting opinion and 60 with two or more such opinions, for a total of 266. In the group of 206, 175 dissenting opinions were never cited by the Supreme Court and 108 were never cited by courts of appeals. In 38 of the 60 cases in which there were two or more dissents, the dissenting opinions were never cited by the Supreme Court and in 17 were never cited by courts of appeals. In contrast, of the 266 majority opinions, only 34 were never cited by the Supreme Court and only 19 were never cited by courts of appeals.


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As shown in Table 6.16, dissents in the courts of appeals are almost never cited by those courts. The mean and median number of citations to a dissent are .138 and 0 both within and outside the circuit, whereas ma-jority opinions in cases in which there is a dissent are cited an average of 13.2 times inside the circuit and 5.3 times outside, the medians being 7 and 3.5.29 Of the 82 dissenting opinions in our court of appeals sample, 72 were never cited inside the circuit and 75 never outside. There thus appears to be little payoff to a court of appeals judge from writing a dis-sent—the in flu ence of his dissent, at least as proxied by citations to it, is likely to be zero. This helps to explain the low dissent rate in the courts of

29. There is a positive correlation between citations to dissenting and majority opinions, but it is weak and not statistically sig nifi cant.

Table 6.15 Regression Analysis of Citations in Supreme Court Majority Opinions to Dissenting Opinions in 1963, 1980, and 1990

Supreme Court

Citations Court of Appeals

Citations Supreme Court Citations to Majority Opinion .012**

(2.77)—

Court of Appeals Citations to Majority Opinion — .002**(2.90)

Signed Opinions in Orally Argued Cases .077(0.64)

.640(1.32)

Two or More Dissenting Opinions .228*(2.05)

.837(1.75)

Mention .025(0.23)

.968*(2.06)

Number of Dissenting Votes .038(0.83)

.415*(2.09)

1980 Term .266*(2.42)

.536(1.14)

1990 Term .149(1.19)

.646(1.21)

Constant .120(0.93)

.803(1.45)


Note: We also estimated regressions of citations to majority opinions. Signed opinions in orally argued cases had a positive and sig nifi cant effect on both Supreme Court and court of appeals citations. The only other sig nifi cant variables were the 1980 and 1990 year variables, which had positive and sig nifi cant effects in at least one regression.

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appeals relative to any plausible estimate of the amount of ac tual disagree-ment among court of appeals judges. Another possible bene fit of dissenting is that the Supreme Court is more likely to grant certiorari when there is a dissent in the court of ap-peals. Comparing the 693 petitions for certiorari that were granted in the 1986 through 1994 terms (excluding petitions to review en banc deci-sions) with a random sample of 683 petitions to review court of appeals decisions that were denied in the same terms, we see in Table 6.17 that there was a dissenting opinion in almost 33 percent of the court of ap-peals decisions in which certiorari was granted but in fewer than 10 per-cent of decisions in which certiorari was denied. But the probability that the Supreme Court will review a court of ap-peals decision in which there was a dissent, and having decided to review it reverse, is too low to create a strong incentive for court of appeals judges to dissent, given dissent aversion, unless a judge would derive very great self- expressive utility from dissenting. There were 89,942 decisions in

Table 6.16 Citations to 82 Court of Appeals Opinions with Dissents, 1990

Inside Circuit Outside Circuit

Opinion Mean Median Mean Median

Majority 13.188 7 5.338 3.5Dissent 0.138 0 0.1375 0Ratio 95.9 — 38.8 —

Table 6.17 Certiorari Petitions Denied and Granted in the 1986–1994 Terms Seeking Review of Federal Court of Appeals Decisions

Court of Appeals Decision

No Dissent Dissent Random Sample of Cases in Which Cert. Was Denied

(N 683)90.6%(619)

9.4%(64)

All Cases in Which Cert. Was Granted (N 693) 67.7%(469)

32.3%(224)

Number of Cases 1088 288

Notes: 1. The numbers in parentheses denote the number of cases. 2. The source of these data is the Epstein-Segal dataset mentioned in chapter 3, note 32.


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orally argued cases in the courts of appeals in the 1986–1994 terms;30 this would be the pool from which almost all court of appeals cases decided by the Supreme Court would come. Suppose the dissent rate in this pool of cases was 7.8 percent (the rate in our Songer sample); then in 7015 decisions there was a dissent. Yet we know from the table that only 224 petitions for certiorari were granted during that period in cases in which there had been dissents in the courts of appeals. Suppose two- thirds re-sulted in a reversal; then there would be 149 cases in which a dissent in the court of appeals had resulted in a reversal by the Supreme Court. That is only 2 percent of our estimate of the number of court of appeals cases in which there was a dissent, which suggests that the expected pay-off from dissenting for a judge deciding whether to dissent in the hope of obtaining a reversal by the Supreme Court is small. Furthermore, there is a danger of a double defeat: if a judge dissents and the decision from which he dissents is af firmed by the Supreme Court, his position has been rejected not only by his colleagues but also by his judicial superiors. We expect the dissent rate in a circuit to be higher when there are more judges in the circuit, their workload is lighter, and their ideological differ-ences are greater. A larger number of judges lowers the collegiality cost of dissenting; a lighter workload lowers the opportunity cost of dissenting; and greater ideological differences increase the occasions on which a judge would be inclined to dissent. To test these hypotheses, we regress in Table 6.18 court of appeals dis-sent rates on possible explanatory factors. We compute dissent rates by dividing number of dissents by number of cases terminated on the merits; the number of judges by the number of active judges plus the number of se nior judges adjusted downward by the ratio of the average number of cases in which a se nior judge par tic i pates to the number in which an ac-tive judge par tic i pates; workload by cases terminated on the merits di-vided by number of judges;31 and judges’ ideological differences by the standard deviation of their ideologies as mea sured by the senatorial cour-

30. Calculated from Richard A. Posner, The Federal Courts: Challenge and Reform 72 (tab. 3–6) (1996).

31. Caseload is an imperfect mea sure of workload because cases are not uniform with re-spect to the time and effort required to decide them. The Administrative Of fice of the U.S. Courts calculates weighted caseload statistics for the district courts but not for the courts of appeals. Posner, note 30 above, at 227–236, calculates weighted caseload statistics for the

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tesy method. We include dummy year variables and cluster the observa-tions by circuit. All variables are in logarithms except for the year vari-ables. The table reveals that the dissent rate is positively related to the num-ber of judges and the ideological difference among judges in the circuit and negatively to the circuit’s caseload. The correlations are high. For ex-ample, a 10 percent increase in the number of judges in a circuit increases the dissent rate by about 6.5 percent, and a 10 percent increase in casel-oad per judge decreases the dissent rate by about 7 percent. The dissent rate in the court of appeals declined between 1990–1992 and 2005–2007 from 3.4 to 2.4 percent, a 23 percent decline ((3.1 2.4) / 3.1 .23). This decline was broadly consistent with the 33 percent increase in case-load during this period from an unweighted mean across circuits of 155 cases per active judge to 204 cases per active judge. But we hesitate to draw a causal inference because that growth and the consequent reduc-tion in the dissent rate may both have been due to an increase in the pro-portion of meritless cases. We need to consider another bit of evidence potentially relevant to the effect of circuit size and caseload on dissent rates. In 1982 the Fifth Cir-

courts of appeals for 1993, and that year falls within our sample period, but we have not calcu-lated weighted caseloads for the other years in the sample.

Table 6.18 Regression Analysis of Log of Dissent Rates in Courts of Appeals, 1990–2006

(1) (2)

Judges (adjusted) .634**(3.88)

.676**(3.65)

Caseload (adjusted) .685**(2.98)

.714**(3.06)

Standard Deviation of Ideology .584*(2.09)

.689*(2.51)

Year Dummies No Yes**Year .037**

(4.52)—

Constant 72.34**(4.44)

1.168(1.14)


Note: Data for 2007, included in Table 6.4, are omitted from this table because we have no 2007 data for Standard Deviation of Ideology.


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cuit was divided into the Fifth Circuit and the newly created Eleventh Circuit. Before the split, the Fifth Circuit had 25 judges; after, it had 13 judges and the Eleventh Circuit had 12. Since the cost in impaired colle-giality of dissenting is greater the smaller the circuit, the sharp drop in the number of judges in the Fifth Circuit could be expected to have led to a reduction in the frequency of dissents. And because the collegiality cost would be roughly the same in the newly created Eleventh Circuit, the combined Fifth and Eleventh Circuits should have a lower overall dissent rate than the Fifth before it was divided. That is what we find, as shown in Fig ure 6.2. The average dissent rate in the Fifth Circuit was 3.6 percent from 1971 to 1982 and 1.7 percent from 1983 to 2007, and also 1.7 per-cent in both the Eleventh Circuit and the combined Fifth and Eleventh Circuits. A closer look at the data, however, suggests that the decline in the dis-sent rate after 1982 was caused not by a reduction in circuit size but in-stead by a caseload surge (see Fig ure 6.3), which would have increased the cost of dissenting. Although there were 25 judges in the Fifth Circuit before the split, 10 had been appointed in 1980, so for most of the pre- split era the number of judges (15) had been only slightly greater than the number (13) after. It is implausible to at trib ute the large drop in the dis-sent rate in 1982–2007 to the small decrease in the number of judges. Regression analysis con firms this, revealing a sig nifi cant decrease in the dissent rate because of an increase in the caseload but no sig nifi cant effect of changes in the number of judges.32

Effects of Se nior Sta tus and Age on Dissent Rates

We have emphasized personal motives, such as dissent aversion, as fac-tors in a judge’s decision to dissent when he disagrees with the majority. Two correlated factors that we have not yet discussed may affect the

32. The regression is

D .062** .0002 (C/J)** .0003 J R2 .74(7.67) (10.07) (0.80)

where D dissent rate, C/J caseload, and J number of judges.

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.05

.04

.03

.02

.01

0

1970 1980 1990 2000

5th Circuit

5th and 11th CircuitsCombined

11th Circuit

Fig ure 6.2 Ratio of Dissents to Cases Terminated on the Merits in the Fifth and Eleventh Circuits, 1971–2007

5th Circuit

11th Circuit

1970 1980 1990 2000

400

300

200

100

Fig ure 6.3 Caseload in the Fifth and Eleventh Circuits, 1971–2007Note: Caseload terminations on the merits/number of judges.


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judge’s motivation: age and whether the judge has taken se nior sta tus (for which minimum eligibility is age 65), which almost always implies that the judge desires to reduce his caseload, though sometimes he will take se nior sta tus instead to reduce the caseloads of all the judges on his court, because by taking se nior sta tus he creates a vacancy. We examine the ef-fect of se nior sta tus and age on dissents using two databases: the Sunstein database for the years 1995 to 2008 and a database created by us of the careers of judges who took se nior sta tus in a different though overlapping period. A judge who by deciding to take se nior sta tus signifies a desire for a lighter workload can further reduce his workload by dissenting less often in the reduced number of cases that he hears as a se nior judge. This fac-tor should lead to a lower dissent rate for se nior than for active judges. But we have seen that collegiality is a reason that appellate judges dissent as infrequently as they do, and the bene fits of collegiality are smaller for se nior judges because they interact with their colleagues less frequently. A related factor is that judges on se nior sta tus occasionally and some-times frequently (but active judges almost never) sit on cases outside their circuit, which is to say with judges in whom they have little invested in collegiality. Moreover, the more they visit, the less frequently they sit with the judges of their own court, further reducing the gains to them of investing in collegiality with those judges. We cannot be certain a priori which in flu ence predominates, and therefore whether se nior judges have a higher or lower dissent rate than active judges (or perhaps the same rate). From the Sunstein database we drew a sample of all judges who took se nior sta tus between 1996 and 2007 and during that interval voted in cases both before and after becoming se nior judges; this enables us to compare their behavior in each sta tus, but our criteria limited the sample to 72 judges out of the more than 300 judges in the database. Neverthe-less the sample contains 3756 votes—2571 before and 1185 after the sampled judges took se nior sta tus. Equivalently, these judges heard 3756 cases, since each judge cast one vote per case. Table 6.19 presents the results separately for judges appointed by Re-publican and by Democratic Presidents, in order to control for the effects of panel composition. We find as expected that Rs and Ds are more likely

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to dissent when a President of the opposite party appointed the other panel members. We also find that se nior sta tus does not reduce and may ac tually increase the dissent rate. In five of the six possible comparisons between Rs and Ds before and after the judge took se nior sta tus (holding the ideological identity of the other panel members constant), the dissent rate is higher in se nior than in active sta tus, though in none of the com-parisons is the difference statistically sig nifi cant. We also estimated logit regressions on the probability of dissent (1 if the judge dissented, 0 if not) for Rs and Ds separately. The in de pen dent variables include a dummy variable for whether the judge’s vote was cast before or after he took se nior sta tus (0 if before and 1 if after); panel com-position dummy variables (the omitted category is DD); a dummy vari-able indicating whether the court reversed or af firmed the district court (we include this variable because we found earlier in the chapter that if the court reverses, the dissent rate is sig nifi cantly higher); and dummy variables for the judge’s sex, race, and whether he had been promoted from the district court, the 14 subject- matter areas in the Sunstein data-base, the individual circuits, and the date of the decision. We clustered the regressions by judges to take account of the possibility that some judges may dissent more or less often than others even after we have con-trolled for all the variables in the regression. In both the R and D regres-sions the coef fi cient of se nior sta tus is positive but not statistically sig nifi-cant. When we combine Rs and Ds in a single regression, holding panel effects constant by including only votes of judges on mixed R/D panels, we also find a positive but now a statistically sig nifi cant effect of se nior sta tus on the frequency of dissent.

Table 6.19 Dissents and Panel Effects for 72 Judges Who Took Se nior Sta tus between 1996 and 2007

R and D Identity of

Votes of Judges When on Active Sta tus

Votes of the Same Judges When on Se nior Sta tus

Other Panel Members R D R D RR 1.26% (712) 3.28% (183) 1.85% (324) 3.74% (107)RD 1.42 (986) 1.10 (272) 1.78 (393) 3.01 (133)DD 5.45 (312) 2.83 (106) 9.72 (144) 2.48 (84)All Panels 1.99 (2010) 2.14 (561) 3.14 (861) 3.09 (324)

Note: In this and the succeeding tables in this chapter the number of cases is in parentheses.


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We can also use the Sunstein data to test whether the dissent rate of se-nior judges depends on whether they sit in their home circuit or in an-other circuit. The judges in the sample cast 125 of their 1185 votes (10.5 percent) after they took se nior sta tus in other circuits, compared to only 3 of 2570 votes when they were active judges. Table 6.20 reveals that the dissent rates of se nior judges are higher in their home circuit than in other circuits in all panels and also in just mixed panels, but the difference is not statistically sig nifi cant. We added a dummy variable for dissenting votes in other circuits to the regressions described in the preceding para-graph; again the coef fi cients were not sig nifi cant. To examine the effect of age on dissents without confounding the ef-fects of age and of se nior sta tus, we limit our analysis of age to the votes of active judges. We expect a decline in effort beyond some age, which should lower the dissent rate. But the discounted bene fits in future colle-giality also decline with age, and the net effect of age on dissents is there-fore uncertain. We distinguish among five age groups, as shown in Table 6.21. The first column includes the votes (cases heard: a total of 10,928) of all the judges; the second includes only the votes of judges on mixed

Table 6.21 Dissents and Age

Dissent Rates of Active Judges

Age Group All Panels (1) Mixed (RD) Panels (2)

65 3.10% (7941) 2.23% (3721)66–69 2.24 (1918) 1.33 (901)70–74 3.14 (636) 2.81 (285)75–79 4.46 (269) 1.65 (121)

80 1.22 (184) 2.50 (80)

Table 6.20 Dissents in Home and Other Circuits of 72 Judges Who Took Se nior Sta tus between 1996 and 2007

Dissent Rate of Se nior Judges on All Panels

Dissent Rate of Se nior Judges on Mixed (RD) Panels

Home Circuit 3.4% (1058) 2.4% (526)Another Circuit or Circuits 1.6% (127) 0% (60)Both Types of Circuit 3.12 (1185) 2.1% (526)

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panels, thus holding panel effects constant. The dissent rates are some-times lower and sometimes higher above age 65 in both columns (1) and (2), but the differences among age groups are not statistically sig nifi cant. We estimated separate logit regressions for Rs and Ds, adding four age dummies (the omitted age category is 65) to the in de pen dent variables in the se nior sta tus regressions; again we find no sig nifi cant effect of age. A shortcoming of using the Sunstein database for these purposes is that its limited time period (1995 to 2008) eliminates many votes of judges before they took se nior sta tus or before they reached the age of 65. A possibly offsetting bene fit, though, is that the before and after periods (either before and after taking se nior sta tus or before and after reaching 65) are close in time, and therefore the votes are less likely to be in flu-enced by the declining dissent rate in the court of appeals over the last 20 years (see Table 6.18) and by changes over time in the ideological com-position of the different circuits. To compensate for the compressed time period in the Sunstein sam-ple, we created a sample of votes cast by two court of appeals judges from each circuit (except the Federal Circuit, which we consistently omit from our analysis in this book), chosen randomly from the limited pool of judges who had at least 20 years of ser vice on their court by the end of the sample period (2011), of which at least 5 years had been spent as a se nior judge. Table 6.22 presents the results. The table reveals that the dissent rate of active judges tends to decline between the first and second half of their active ser vice. Although the dif-ference is small (see the averages at the bottom of columns (6) and (7)), it is statistically sig nifi cant because the sample size is so large ( 90,000 votes). We find sig nifi cantly lower dissent rates in the second half than in the first half of active ser vice for 14 judges, a sig nifi cantly higher rate in the second half for only 1 judge, and insig nifi cant differences for the re-maining 9 judges. Se nior judges dissent only slightly less often than ac-tive judges who are in the second half of their active ser vice, and the dif-ference is statistically sig nifi cant. Of the 24 judges, 10 had sig nifi cantly higher dissent rates as active judges, 3 sig nifi cantly lower, and for 11 there were no sig nifi cant differences. Table 6.22 also shows that, on average, se nior judges have sig nifi cantly higher dissent rates when they visit other circuits, although this shows up


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Tabl

e 6.2

2 D

isse

nt R

ate

Stat

istic

s for

24

Cou

rt o

f App

eals

Judg

es

Circ

uit

(1)

Year

Ju

dge

Was

A

ppoi

nted

(2

)

Year

Ju

dge

Took

Se

nior

St

atus

(3

)

Year

s as

Act

ive

Judg

e (4

)

Year

s as

Seni

or

Judg

e (5

)

Dis

sent

R

ate

in

Firs

t Hal

f of

Act

ive

Serv

ice

(6)

Dis

sent

R

ate

in

Seco

nd H

alf

of A

ctiv

e Se

rvic

e (7

)

Se ni

or

Dis

sent

R

ate

(8)

Se ni

or

Dis

sent

R

ate

in

Hom

e C

ircui

t (9

)

Se ni

or

Dis

sent

R

ate

as

Vis

itor

(10)

Age

Whe

n To

ok S

e nio

r St

a tus

(1

1)

Sely

a1s

t19

8620

0620

60.

7%

(237

3)0.

5%

(188

4)0.

5%

(828

)0.

5%

(827

) 0%

(1

)72

Stah

l1s

t19

9220

019

110.

8%

(102

8)0.

9%

(909

)1.

1%

(926

)1.

0%

(881

)2.

2%

(45)

70

Kea

rse

2d19

7920

0223

103.

4%**

(1

117)

1.8%

(2

167)

1.0%

(1

274)

1.0%

(1

274)

NA

(0

)65

New

man

2d19

7919

9718

152.

2%

(920

)2.

5%**

(1

092)

0.3%

(2

837)

0.3%

(2

820)

0%

(17)

65

Nyg

aard

3d19

8820

0517

75.

0%*

(641

)2.

9%**

(1

259)

1.1%

(1

238)

1.1%

(1

238)

NA

(0

)65

Ald

iser

t3d

1968

1986

1826

4.4%

* (9

11)

7.3%

**

(600

)1.

6%

(222

9)1.

5%

(147

6)1.

9%

(753

)67

Ham

ilton

4th

1991

1999

813

0.7%

(2

307)

0.6%

* (3

178)

0.3%

(1

0,08

0)0.

3%**

(1

0,02

5)3.

6%

(55)

65

Phill

ips

4th

1978

1994

1618

2.3%

**

(101

7)0.

8%

(458

1)0.

6%

(322

6)0.

6%

(316

6)0%

(6

0)72

Hig

ginb

otha

m5t

h19

8220

0624

61.

1%**

(3

195)

0.1%

(7

627)

0.2%

(3

240)

0.2%

(3

226)

NA

(0

)68

Rea

vley

5th

1979

1990

1122

2.4%

(8

89)

2.0%

**

(104

1)0.

6%

(630

8)0.

6%

(541

8)0.

6%

(890

)69

Mer

ritt

6th

1977

2001

2411

3.9%

**

(282

8)2.

4%**

(3

033)

5.8%

(1

113)

5.8%

(1

080)

3.0%

(3

3)65

Kei

th6t

h19

7719

9518

171.

6%

(259

3)2.

1%

(206

9)2.

3%

(125

3)2.

3%

(119

3)1.

7%

(60)

73

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Cud

ahy

7th

1979

1994

1518

7.9%

* (9

25)

5.8%

**

(203

1)2.

2%

(240

6)2.

1%

(181

9)2.

6%

(587

)68

Bau

er7t

h19

7419

9420

182.

5%**

(1

091)

1.2%

**

(261

4)0.

5%

(542

9)0.

5%

(542

9)N

A

(0)

68

Bow

man

8th

1983

2003

209

2.5%

**

(224

9)0.

4%

(368

2)0.

4%

(145

7)0.

4%

(135

8)0%

(9

9)70

Brig

ht8t

h19

6819

8517

172.

4%

(105

4)2.

8%**

(1

828)

6.7%

(2

821)

8.5%

**

(193

7)2.

6%

(884

)66

Wal

lace

9th

1972

1996

2416

5.5%

**

(137

1)1.

9%

(307

4)1.

4%

(528

7)1.

4%

(482

4)1.

3%

(463

)68

Hug

9th

1977

2002

2510

1.6%

**

(127

6)0.

5%

(452

6)0.

6%

(169

0)0.

5%*

(166

9)4.

8%

(21)

71

Hol

low

ay10

th19

6819

9224

203.

9%*

(845

)2.

0%*

(102

1)3.

5%

(141

9)3.

5%

(141

9)N

A

(0)

69

Seym

our

10th

1979

2005

267

2.1%

**

(183

6)1.

1%

(340

7)0.

5%

(917

)0.

4%*

(899

)5.

6%

(18)

65

Cox

11th

1988

2000

1212

2.7%

(7

44)

3.6%

* (5

68)

1.3%

(1

104)

1.2%

(1

083)

4.8%

(2

1)65

Kra

vitc

h11

th19

8119

9615

163.

2%

(129

8)2.

7%*

(103

9)1.

5%

(218

7)1.

5%

(211

0)1.

3%

(77)

76

Edw

ards

DC

1980

2001

2111

2.8%

* (1

042)

1.7%

**

(263

6)0.

7%

(136

0)0.

7%

(136

0)N

A

(0)

65

Silb

erm

anD

C19

8520

0015

123.

0%**

(9

36)

0.9%

(2

083)

0.9%

(3

39)

0.9%

(3

38)

0%

(1)

65

Ave

rage

of A

ll Ju

dges

19

8019

9818

142.

5%**

(3

4,48

6)1.

4%**

(5

7,94

9)1.

2%

(60,

954)

1.3%

* (4

2,92

3)1.

8%

(408

5)68

Not

es:

1.

“N

A” m

eans

that

judg

e di

d no

t vis

it an

y ot

her c

ircui

t.

2. T

he to

tal n

umbe

r of v

otes

cas

t by

se ni

or ju

dges

(60,

954)

exc

eeds

the

sum

of v

otes

cas

t by

se ni

or ju

dges

in th

eir h

ome

circ

uit (

42,9

23) a

nd o

ther

circ

uits

(408

5) b

ecau

se th

e to

tal i

nclu

des a

ll 24

judg

es b

ut th

e la

tter t

wo

sum

s inc

lude

onl

y th

e 18

judg

es w

ho v

isite

d.

3. T

he a

ster

isks

in c

olum

n (6

) den

ote

the

leve

ls o

f sig

nifi c

ance

(* a

t the

.05

leve

l and

**

at th

e .0

1 le

vel)

betw

een

the

first

and

seco

nd h

alf o

f act

ive

ser v

ice.

In c

olum

n (7

) the

leve

ls

of si

g nifi

canc

e ar

e be

twee

n th

e se

cond

hal

f of a

ctiv

e se

r vic

e an

d se

nior

sta t

us a

nd in

col

umn

(9) b

etw

een

se ni

or st

a tus

in th

e ho

me

and

in v

isiti

ng c

ircui

ts.

4.

The

aver

age

of a

ll ju

dges

is a

wei

ghte

d av

erag

e, th

e w

eigh

t for

eac

h ju

dge

bein

g th

e nu

mbe

r of v

otes

he

cast

.


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only weakly in the statistics for the individual judges. In this group of 18 judges, 3 had sig nifi cantly higher dissent rates as visitors and 1 a sig nifi-cantly lower dissent rate as a visitor; for 14 there was no sig nifi cant dif-ference. Turning now to the effect of age on dissent rate, we see that 9 judges took se nior sta tus at age 65 and 15 later and that the former group had had a sig nifi cantly higher dissent rate when they were active judges than judges taking se nior sta tus after age 65—2 percent compared to 1.7 per-cent. But they had a sig nifi cantly lower dissent rate after taking se nior sta-tus—.8 percent compared to 1.4 percent. We have no explanation for this pattern. The results in Table 6.22 are suggestive but not definitive, because we have not collected data on the individual cases and therefore have not been able to adjust for other possible in flu ences on dissent rates, includ-ing panel effects and other variables included in the Sunstein regressions. Nor have we tried to adjust for the declining dissent rate in the courts of appeals in the 1990 to 2007 period. The decline was from 3.1 percent in 1900–1993 to 2.5 percent in 2004–2007, and the coef fi cient on the time trend variable in the dissent regressions in Table 6.18 is negative and highly sig nifi cant. Adjusting the dissent rates for that trend would elimi-nate many of the differences associated with age and se nior sta tus in Table 6.22. Furthermore, for some of the judges, particularly Bauer, Hamilton, and Higginbotham, the number of cases that our Westlaw search rec ords them as having heard per year of se nior sta tus is too high. We do not un-derstand this anomaly (it seems to be a Westlaw prob lem), but eliminat-ing these judges from our sample would not alter the results sig nifi cantly. Our reasons for presenting results for each judge rather than just the aggregate results (the last two rows) are twofold. First, with such a small sample of judges (24, although they cast a total of 153,389 votes), and with the votes distributed unevenly among the judges, as shown in the table, an outlier judge can skew the aggregate results. Second, we wanted to show the striking variance in dissent rates across judges. That variance underscores the im por tant question—not explored in this book except with reference to Supreme Court Justices, mainly in chapters 3 and 7, and court of appeals judges only in chapter 8—of differences among indi-vidual judges. Those differences invite further analysis—for example, of

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the existence noted briefly at the beginning of this chapter of dissent pref-erence, as distinct from the more common dissent aversion. A further ex-tension of the analysis in this section would consider the full careers of appellate judges. Neither the Sunstein nor the Songer data allow us to do this, so it would require a substantial investment in data collection.


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