Who Dissents?

Abstract

This chapter looks at rates of dissent on the court—occasions where one or more judges disagrees with the outcome proposed by a majority of the court. Although this definition of dissent isn’t the only definition (some authors like also to focus on disagreement concerning the reasoning), it is the most tractable, and is used here. The explanation of dissent given in this chapter turns out to be deceptively simple. First, judges are more likely to dissent if they are sitting on a case with more judges. This gives them more opportunity to disagree, and they take it: nine-judge panels are much more likely to feature dissent than are five-judge panels. Second, judges are more likely to dissent if there are other specialists on the panel. If there are no other specialists, then specialists judges will end up writing the lead opinion, and face little disagreement. With multiple specialists, however, the possibilities for informed disagreement grow.