The Evolution of Dissent in the United States Supreme Court Open Access

Smelcer, Susan Navarro (2015)

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This project explores the evolution of dissenting opinions across the history of the United States Supreme Court. Political scientists and legal scholars traditionally have viewed dissent as ancillary to the judicial decision-making process. This perception is a function of the fact that most studies of judicial behavior focus on the modern Court--that is, the Court as it was following the New Deal--after dissenting had become commonplace. In this project, I provide a more nuanced perspective on dissent by examining how the practice has changed over time, as well as the institutional conditions under which that change has occurred. Using original data, I argue that dissent behavior in the early Court was closely tied to the Court's institutional prestige. In particular, when public support for the Court was low or the Court was susceptible to attack by other institutions, Justices tended to restrict their use of dissent. This behavior largely disappeared following the New Deal, and dissents took on an expanded role in the life of the Court. Ideological disagreement is clearly necessary for such division to occur, but it is not sufficient. I hypothesize that, in the modern Court, Justices use minority opinions not simply as modes of personal expression but also as tools to achieve a variety of social and legal ends. In particular, I argue that, following the New Deal, Justices began to see dissents as a way to communicate their preferred line of reasoning for reconsideration (and potentially adoption) by a future Court. Using a formal model, I derive hypotheses regarding the conditions under which future Courts will adopt minority opinions. In general, I observe that the quality of dissenting opinions plays an important role in predicting adoption. I test these hypotheses using original data and discover that higher quality dissents, as measured by both opinion clarity and citation-based measures of legal craftsmanship, are more likely to be cited and discussed by future Courts than lower quality opinions, holding all else equal. This project represents a novel approach to understanding dissents and their role in the development of the Court as an institution and the law itself.

Table of Contents

1 Introduction. 1

2 Dissent in Existing Models. 4

2.1 The Rise of Behavioralism in the Study of Judicial Behavior. 6

2.1.1 Legal Realism and the Genesis of Empirical Studies of Judicial Behavior. 7

2.1.2 Behavioralist Studies and Their Focus on Judges' Attitudes. 9

2.1.3 Attitudinalism Emerges as the Dominant Behavioral Model. 11

2.2 Putting Attitudinalism in a Strategic Environment. 13

2.2.1 Strategic Considerations Resulting from the Collegial Bargaining Process. 13

2.2.2 Strategic Considerations Resulting from the Structure of the Judiciary. 15

2.2.3 Other Institutional Considerations in Judicial Decision-Making. 18

2.3 Conclusion. 22

3 An Institutional History of Dissent. 25

3.1 Institutional Legitimacy and the Rise of the Norm of Consensus. 28

3.2 The Pre-Marshall Court: Developing Opinion-Writing Norms. 43

3.3 The Marshall Court: Developing an Institutional Voice. 54

3.4 The Taney Court: Expanding Dissent Under the Weight of the Nation. 74

3.4.1 Changes in the Writing and Reporting of Opinions. 81

3.4.2 Institutional Prestige and the Rise and Fall of Dissent. 82

3.4.3 Discussion. 94

3.5 From Chase to Hughes: Using Opinions to Rebuild the Court's Legitimacy, 1864-1937. 95

3.5.1 The Waxing and Waning of the Court's Prestige. 96

3.5.2 Responding to Institutional Attacks through Changing Dissent Behavior. 105 Hypotheses. 106 Data and Methods. 107 Analysis. 112

3.6 Conclusion. 117

4 Dissent in the Modern Era, 1937-Present. 121

4.1 The Rise of Dissent in the Modern Era. 122

4.2 Uncovering Variation in Dissent. 127

4.3 The Changing Role of Legitimacy. 128

4.4 Variation in the Number of Dissenting Votes. 132

4.5 Variation in the Number of Dissenting Opinions. 147

4.6 Variation in Clarity (Readability) Over Time. 150

4.7 Conclusion. 155

5 The Benefits of Dissent. 157

5.1 Defining Political Communication. 158

5.2 Opinions as Political Communication. 160

5.2.1 The Adversarial Process as a Deliberative Process. 161

5.2.2 The Intrinsically Communicative Nature of Opinions. 165 Argumentation. 166 Information Transmission. 166 Reflective Statements. 168 Social Statements. 169

5.3 Unique Communicative Functions of Judicial Dissent. 171

5.3.1 Dissent in the Collegial Bargaining Process. 177

5.3.2 Dissent as Legitimating the Court's Role in a Deliberative Democracy. 179

5.3.3 Dissent as a Future Majority Position. 186

5.4 Conclusion. 197

6 A Model Explaining the Dissent Adoption. 199

6.1 Structure of the Model. 199

6.2 Analysis of the Model. 205

6.2.1 Choosing Policy and Quality (pc,qc). 206 Policy and Quality When Maintaining Precedent. 206 Policy and Quality when Discarding Precedent and Adopting Dissent. 212 Policy and Quality when Discarding Precedent and Adopting No Opinion. 217

6.2.2 Given the decision to discard precedent, when will the court adopt a dissenting opinion?.218 When the expected bias of the future court is sufficiently small. 218 When the expected bias of the future court is more extreme. 218

6.2.3 When will the court discard precedent?. 221

7 An Empirical Analysis of Dissent Adoption. 224

7.1 Hypotheses Derived from the Model. 224

7.2 Data and Methods. 227

7.2.1 Independent Variables. 229

7.2.2 Dependent Variables and Model. 242

7.3 Analysis. 247

7.4 Discussion. 253

8 Conclusion. 256

Appendix A Robustness Analyses for 1877-1937 Period. 261

Appendix B Additional Analysis of Changes in Dissent in the Modern Era. 264

Appendix C Proof. 266

Appendix D Explanation of Measures. 316

Works Cited

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