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Here Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench
Unformatted Document Text:  12 Chief Justice.” 39 Ultimately, we believe announcing opinions from the bench is similar to Justice Douglas’ behavior in Roe, or to the decision to dissent from denial of certiorari. That is, each behavior breaks a collegial norm on the Court, and is therefore not taken lightly. The remainder of this section turns to the literature on dissenting behavior to provide us with insight into announced opinions. Scholars provide several primary explanations for this behavior, which fall into three categories: ideological affinity, strategic factors, and institutional context. First, and most fundamentally, the decision to dissent or concur stems from a disagreement over law and policy preferences. This may be because a justice is unhappy with the precedent set in a case, or because she believes existing legal doctrine is being compromised by the majority’s policy choice. Therefore, as Wahlbeck, Spriggs, and Maltzman argue, a justice is more likely to write separately when she is ideologically distant from her colleagues. 40 Furthermore, the likelihood of ideological disagreement is increased by cases that deal with multiple issues. 41 Second, Wahlbeck et al. argue that the decision to write a separate opinion is not simply a function of policy preferences. 42 Rather, the decision may include a variety of strategic 39 L AZARUS , supra note 4, at 354. For a discussion of when the Court is likely to hear rearguments, see Valerie Hoekstra & Timothy R. Johnson, Delaying Justice: The Supreme Court’s Decision Hear Rearguments, 56 P OL . R ES . Q. 351 (2003). 40 Paul J. Wahlbeck et al., The Politics of Dissents and Concurrences on the U.S. Supreme Court, 27 A M . P OL . Q. 488, 495 (1999). 41 Ibid. at 495. 42 Ibid. at 496.

Authors: Johnson, Timothy. and Black, Ryan.
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12
Chief Justice.”
39
Ultimately, we believe announcing opinions from the bench is similar to Justice
Douglas’ behavior in Roe, or to the decision to dissent from denial of certiorari. That is, each
behavior breaks a collegial norm on the Court, and is therefore not taken lightly.
The remainder of this section turns to the literature on dissenting behavior to provide us
with insight into announced opinions. Scholars provide several primary explanations for this
behavior, which fall into three categories: ideological affinity, strategic factors, and institutional
context. First, and most fundamentally, the decision to dissent or concur stems from a
disagreement over law and policy preferences. This may be because a justice is unhappy with
the precedent set in a case, or because she believes existing legal doctrine is being compromised
by the majority’s policy choice. Therefore, as Wahlbeck, Spriggs, and Maltzman argue, a justice
is more likely to write separately when she is ideologically distant from her colleagues.
40
Furthermore, the likelihood of ideological disagreement is increased by cases that deal with
multiple issues.
41
Second, Wahlbeck et al. argue that the decision to write a separate opinion is not simply a
function of policy preferences.
42
Rather, the decision may include a variety of strategic
39
L
AZARUS
, supra note 4, at 354. For a discussion of when the Court is likely to hear
rearguments, see Valerie Hoekstra & Timothy R. Johnson, Delaying Justice: The Supreme
Court’s Decision Hear Rearguments, 56 P
OL
. R
ES
. Q. 351 (2003).
40
Paul J. Wahlbeck et al., The Politics of Dissents and Concurrences on the U.S. Supreme Court,
27 A
M
. P
OL
. Q. 488, 495 (1999).
41
Ibid. at 495.
42
Ibid. at 496.


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