This research examines the applicability of cognitive dissonance theory to explain a judge's decision to author or join a separate opinion. The author proposes that, when a judge casts a counterattitudinal vote, that judge will endeavor to reduce the aversive consequences of being viewed as an inconsistent decision maker by justifying his or her attitudinally incongruent vote choice to the public in a separate opinion. The author tests this possibility by examining U.S. Supreme Court justices' decisions to author or join concurring and dissenting opinions during the 1946 to 2001 terms. The empirical results provide qualified support for the use of separate opinions as dissonance reduction mechanisms, suggesting that dissonance theory both is applicable to the actions of elite decision makers and enjoys validity outside of a laboratory setting.
judicial decision making, political psychology, dissenting opinions, concurring opinions
The application of psychological theories to legal decision making has a long history in the social scientific study of judicial politics and behavior. This vein of research saw its genesis in the legal realist movement of the early twentieth century. In response to formalistic and mechanical views of how judges rendered their decisions, the legal realists turned to theories and methodologies developed in the social sciences, and social psychology in particular, to explain legal decision making (e.g., Burtt 1931; Frank 1930/1963; Schubert 1965). In large part, the incorporation of psychological concepts has proved a success. For example, cognitive and motivational components inform the attitudinal model of judicial decision making (e.g., Rohde and Spaeth 1976; Segal and Spaeth 2002). Likewise, the concept of motivated reasoning has been profitably applied to explain legal decision making (Braman and Nelson 2007), and social cognition and motivational theories more generally have been shown to offer substantial leverage over the determinants of judicial behavior in a variety of contexts (e.g., Aliotta 1988; Rowland and Carp 1996). Despite the explanatory power proffered by psychological theories, in more recent years there has been somewhat limited attention devoted to the psychology of judicial choice as scholars have focused a great deal of research on strategic (e.g., Brenner and Whitmeyer 2009; Epstein and Knight 1998; Hammond, Bonneau, and Sheehan 2005; Helmke 2002; Hettinger, Lindquist, and Martinek 2006; Maltzman, Spriggs, and Wahlbeck 2000; Murphy 1964; Rohde 1972), as opposed to (nonstrategic) psychological, characterizations of judicial decision making (but see, e.g., Baum 1997, 2006; Braman 2006; Simon 1998; Wrightsman 1999, 2006). The purpose of this research is to add to our understanding of the psychology of judging by exploring the application of cognitive dissonance theory to explain authorship of separate opinions on the U.S. Supreme Court.
At its core, cognitive dissonance describes the state of psychological discomfort that arises when an individual behaves in a manner that is inconsistent with that individual's beliefs or prior actions (Festinger 1957). More specifically, cognitive dissonance occurs when, for example, an individual holds an opinion "X" but then states that he or she believes "not X" (Festinger and Carlsmith 1959, 203). When the individual behaves in such an inconsistent manner, dissonance is said to ensue. To alleviate this dissonance, the individual will employ dissonance reduction mechanisms in an attempt to reduce the psychological discomfort that resulted from the discrepant behavior (e.g., Festinger 1957; Stone et al. 1997). Since the publication of Festinger's (1957) seminal introduction to cognitive dissonance, thousands of articles in disciplines as diverse as anthropology, economics, history, philosophy, psychology, and sociology have explored the applicability of the theory to a wide range of situations (E. …