Hear Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench?

Timothy R. Johnson, Ryan C. Black, and Eve M. Ringsmuth

Published 2009, Minnesota Law Review 93(5): 1560-1581 (May).


Under what conditions Justices will announce their separate opinions from the bench or, alternatively, is it simply a random phenomenon? The answer, which we provide in this article, is that important and theoretically motivated patterns exist to explain Justices’ decisions to announce separate opinions from the bench. Specifically, we find that the decision to announce is a function of ideological, case-specific, and potentially strategic considerations. The Article proceeds as follows. After a short introduction, Part II explores additional examples of publicly read dissents. Part III puts forth the theoretical argument and provides hypotheses based on this argument. Part IV describes the data used to test these hypotheses, and Part V presents the results of this analysis. We conclude with a discussion of whether announcing dissents from the bench can have an effect on legal policy and what these findings mean for our understanding of Supreme Court decision-making and the Justices’ relationships with one another.

Download the article here.

Research findings described in Adam Liptak. 2010. "In a Polarized Court, Getting the Last Word." New York Times. March 8, 2010 (page A12).