How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

By Baird, Vanessa; Jacobi, Tonja | Duke Law Journal, November 2009 | Go to article overview

How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court


Baird, Vanessa, Jacobi, Tonja, Duke Law Journal


ABSTRACT

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed in terms of federal-state powers. We show that when dissenting opinions signal a preference for transforming an issue into an argument about federal-state power, more subsequent cases in that area are decided on that basis. Moreover, the previous minority coalition is in the majority significantly more often, showing that these signals are systematically successful Not only can federalism-based dissents transform the rhetoric of cases, they can systematically and significantly shift the outcome of cases in the direction of the dissenting Justices' views.

TABLE OF CONTENTS

Introduction

I.   Case Studies
        A. The Trees Beyond the Forest: Federalism Transforms
           Bacon's Park
        B. Beyond Relitigation: Developing Doctrine in
           Subsequent Litigation
II.  A Theory of Judicial Signaling
       A. Assumptions
          1. Justices' Policy Preferences and Strategic Behavior
          2. Litigants, Their Access to Cases, and the Timing of
              Litigation
       B. Formalizing a Theory of Judicial Signaling
          1. Description of Signaling Theory
          2. The Litigation Time Lag
          3. Transforming the Issue Dimension of Judicial
              Decisionmaking
III. An Empirical Assessment of Judicial Signaling
       A. Methods
          1. Data
          2. Measuring the Placement of Case Outcomes
       B. Results
          1. The Effect of Federalism Dissents on the Number of
              Federalism Cases
          2. Explaining the Supreme Court's Ideological
              Movement in Federalism Cases
          3. The Magnitude of the Impact
IV. Implications

INTRODUCTION

Why do judges dissent? Legal scholars have long struggled to answer this seemingly simple question satisfactorily. One traditional legal view is that the dissenting judge is simply laying out an alternative theory of the law (1) --but by definition, the court has rejected that interpretation of the law. To the extent that we believe the myth that judges discover the law, dissents simply represent rejected dead ends along that path of discovery. A more public-choice view is that dissents are an attempt to convince the majority of its error. (2) This could explain why judges circulate drafts of dissents--but by the time of publication, dissenting judges have lost the fight. A game theoretic twist on this view is that publication is necessary to make those drafts credible threats. Under this theory, it is necessary to publish even when the fight has been lost; otherwise, future threats to dissent will not be credible. (3) But that argument necessarily assumes that dissenting is costly to the court, presumably by harming judicial legitimacy and challenging the fiction of judges as apolitical discoverers of law. (4) Presumably, this harm applies as much to the dissenting judge as to the majority judge, and so the theory cannot really explain why two-thirds of all cases involve published dissents. (5)

We propose an alternative theory: at least some dissents may be explained as signals from judges to litigants about how to frame future similar cases to increase the chance of success for the argument the dissenting judge supports.

This will not explain all dissents. …

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