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Here Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench
Unformatted Document Text:  11 decision or relay information to litigants regarding strategies for getting similar cases accepted in the future. Second, a dissent from denial may be part of the Court’s internal bargaining process. 36 That is, a justice may use such a dissent to indicate her resolve on a matter or to boost the credibility of future threats to go public. Regardless of the intended audience, going public through dissents from denial serves key purposes for the justices. At the same time, however, doing so also breaks a norm of behavior on the Court. 37 Sometimes justices may even threaten to publicly discuss internal Court procedures with which they disagree. Justice Douglas’ reaction to Chief Justice Burger’s request for reargument in Roe v. Wade illustrates this point. When Burger asked for this course of action Douglas was incensed, and threatened to make public a dissent that told, “what is happening to us and the tragedy it entails.” 38 He was particularly upset because the Court had a majority and he believed the Chief simply wanted to hear rearguments to procure the votes of Justices Powell and Rehnquist – the two newest members of the Court. Thus, Douglas felt the Chief’s plan “dilute[d] the integrity of the Court and ma[de] the decisions here depend on the manipulative skills of the 36 Lee Epstein et al., Discerning the Goals of U.S. Supreme Court Justices (unpublished manuscript presented at the 1998 Annual Meeting of the Conference Group on the Scientific Study of Judicial Politics, East Lansing, MI; on file with the authors). 37 Epstein, Lee and Jack Knight (1998) The Choices Justices Make, Washington D.C.: Congressional Quarterly Press, 59. 38 L AZARUS , supra note 4, at 354.

Authors: Johnson, Timothy. and Black, Ryan.
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11
decision or relay information to litigants regarding strategies for getting similar cases accepted in
the future. Second, a dissent from denial may be part of the Court’s internal bargaining process.
36
That is, a justice may use such a dissent to indicate her resolve on a matter or to boost the
credibility of future threats to go public. Regardless of the intended audience, going public
through dissents from denial serves key purposes for the justices. At the same time, however,
doing so also breaks a norm of behavior on the Court.
37
Sometimes justices may even threaten to publicly discuss internal Court procedures with
which they disagree. Justice Douglas’ reaction to Chief Justice Burger’s request for reargument
in Roe v. Wade illustrates this point. When Burger asked for this course of action Douglas was
incensed, and threatened to make public a dissent that told, “what is happening to us and the
tragedy it entails.”
38
He was particularly upset because the Court had a majority and he believed
the Chief simply wanted to hear rearguments to procure the votes of Justices Powell and
Rehnquist – the two newest members of the Court. Thus, Douglas felt the Chief’s plan “dilute[d]
the integrity of the Court and ma[de] the decisions here depend on the manipulative skills of the
36
Lee Epstein et al., Discerning the Goals of U.S. Supreme Court Justices (unpublished
manuscript presented at the 1998 Annual Meeting of the Conference Group on the Scientific
Study of Judicial Politics, East Lansing, MI; on file with the authors).
37
Epstein, Lee and Jack Knight (1998) The Choices Justices Make, Washington D.C.:
Congressional Quarterly Press, 59.
38
L
AZARUS
, supra note 4, at 354.


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