The Department of Government
The Department of Government

Dissent in the U.S. Supreme Court

Fri, December 18, 2009

“The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench,” by William Blake, a Government graduate student, and Hans J. Hacker, assistant professor at Arkansas State University, has been accepted for publication in Justice System Journal. From 1969-2007, 3,683 dissenting opinions have been written. The article presents a new dataset of 107 dissenting opinions read aloud from the bench and develops a statistical model to explain under what conditions a justice is most likely to read a dissenting opinion.

All justices who sat on the court from 1969-2007 have read at least one dissenting opinion from the bench, except for justices Harlan, Alito, and Roberts. Overall, the average probability that a dissenting opinion will be read from the bench is 2.89%. The average number of dissents read per term is 2.7, although the average for the Roberts Court, which began in 2005, is four. The factors that increase the probability of a dissent being read from the bench are: cases dealing with privacy issues; small majorities; a ruling on the constitutionality of legislation; and formal alteration of precedent.

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