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DO DIFFERENCES IN POLICY PREFERENCES INFLUENCE DISSENTS?

Differences in policy preferences are perhaps the most obvious potential source of disagreement between judges. A judge may dissent simply because he disagrees with the policy implications of the decision of the other judges. There is a disagreement in the literature about how great a role ideology plays. Under the attitudinal model, judges agree when they have similar policy preferences about the result of the particular appeal.[1] The cost of agreeing for a judge is that she must compromise on her policy preference where it differs from that of the majority.[2] Dissent, on this view, then arises from differences in views about policy outcomes.

even where the judge dissents, there are trade-offs. As Epstein, Landes, and Posner note:

Since writing a dissenting opinion requires effort, a judge will not dissent unless he anticipates a benefit that offsets that cost. One benefit is to undermine the influence of the majority opinions, with which by assumption he disagrees, although possible offsets are that a dissent will draw attention to the majority opinion and may even magnify its significance by exaggerating its potential scope in order to emphasize the harm that it will do.[3]

Despite possibly drawing attention to the majority opinion, a judge may be more likely to dissent if she is an ideological outlier, as her opinion would not otherwise be heard. She may also view dissent as providing the basis for future decisions. For example, between 1991 and 1997, Justice L’Heureux-Dube of the Supreme Court of Canada dissented 61 times, by far the highest level of dissent on the Court, and 80 percent were solo dissents.[4] She has been described as the classic outsider,[5] and has written that dissenting opinions can be very important for the development of new and alternative approaches to the law by laying the foundations for future appeals.[6] Chief Justice Charles Evan Hughes of the uS Supreme Court famously referred to dissents as “appeals to the brooding spirit of the law, to the intelligence of another day"[7]

One hypothesis about the dissent rate that follows therefore is:

H1: A greater differences in ideology will lead to a higher dissent rate.

We could think of identifying differences in ideology in different ways. First, we could specify a measure of ideological divergence on a court to see if the level of dissent increased as divergence increased. A related issue arises where courts hear appeals in panels. If a high court hears its decisions in panels, the ideological split on particular panels may influence the rate of disagreement (as opposed to just the overall split if the court hears decisions en banc). However, as discussed in Chapter 5, not only bare differences in ideology may matter, but also the composition of the panel. Panel composition can lead to whistleblower and ideological amplification effects, which may influence the level of dissent merely because of the presence (or absence) of like-minded colleagues.[8]

The other way to examine this issue is to look for indirect measures. If ideological preferences influence voting, dissent will be more common in cases involving contentious issues such as race, gender, and religion—subjects about which individuals form strong ideological and personal convictions.[9] The benefit of dissenting on an issue with a strong social dimension will generally be greater than the benefit of dissenting on an issue of pure legal doctrine. Even when dissent is rare as in India, these controversial cases will not always be unanimous.[10] Likewise, on a court that typically does have a high dissent rate, some types of cases may be less contentious.[11]

Relatedly if the docket is discretionary, rather than mandatory, we would expect a higher rate of dissent.[12] At the Supreme Court (or equivalent) level, some if not most cases will be controversial. However, if the court’s docket is partly discretionary, the mandatory appeals will tend on average to be easier and less controversial.[13] The Supreme Court of Canada, for instance, should have a higher rate of consensus in criminal appeals as of right than in (discretionary) Charter appeals.[14]

One further factor that is related to these differences in policy preferences is the number of judges. If there are more judges on the court, there are more opportunities for differences of opinion.[15] Similarly, if there are more judges on a particular panel, there is a greater likelihood of a judge disagreeing. In addition, if a judge is averse to dissenting out of fear of alienating her colleagues, she may be more likely to dissent if there are many judges, as her colleagues may take disagreement less personally. However, an opposing theory is also plausible: the more judges there are, the greater the number of colleagues who will potentially be alienated. A risk-averse judge may decide not to dissent, with the result that “small panels can reach agreements, mitigating the effect of ideologies more easily” than larger ones.[16]

Fear of alienating colleagues by dissenting may not influence the US Supreme Court, which is so politicized that justices would not be likely to take disagreement personally: dissents from other justices are entirely expected and are part of a normal working day. For instance, Justice Ginsburg and Justice Scalia, who rarely agreed on a case, were known to be good friends who shared New Year’s dinners together, with their spouses, for decades.[17] Epstein et al. found that although the US Supreme Court had gone through periods of poor relations among the justices, those periods did not appear to correspond to greater frequency of dissents.[18] These divergent possibilities may be the reason some scholars argue panel size is not an effective predictor of dissent rates.[19] However, at the very least, a greater number of judges leads to a higher probability of a judge having a different policy preference to the majority, and we therefore have to control for this factor where we are able.

  • [1] Paul H. Edelman, David E. Klein & Stefanie A. Lindquist, “Consensus, Disorder andIdeology on the Supreme Court” (2012) 9:1 J. Empirical Legal Studies 129 [Edelman et al.] (“[p] utsimply, the attitudinal account of consensus is that most or all the justices happen to prefer thesame option in a given case” at 131).
  • [2] A court may be split not only on difference in policy but on personal differences. Smythargues that the Australian High Court was badly split by personal strife during the Lathamera. Russell Smyth, “Judicial Interaction on the Latham Court: A Quantitative Study of VotingPatterns on the High Court 1935-1950” (2001) 47:3 Australian Journal of Politics and History 330at 344. More recently, Rice and Zorn examined the language used in opinions at the U S SupremeCourt and found an increasing use of emotional language over time and changes in the positiveversus negative valence of this language over time: Douglas R. Rice & Christopher Zorn, “TheEvolution of Consensus in the U.S. Supreme Court” (2014) [unpublished], online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2470029 [Rice & Zorn].
  • [3] Epstein, Landes & Posner, Behavior, supra note 23 at 256.
  • [4] C.L. Ostberg, Matthew Wetstein & Craig R. Ducat, “Leaders, Followers, and Outsiders: Taskand Social Leadership on the Canadian Supreme Court in the Early Nineties” (2004) 36:3 Polity505 at 521, n. 24, 522 [Ostberg et al., “Leaders”].
  • [5] Ostberg et al., “Leaders,” supra note 28 at 523.
  • [6] Justice Claire L’Heureux-Dube, “The Dissenting Opinion: Voice of the Future?” (2000) 38:3Osgoode Hall Law Journal 495 at 508 [L’Heureux-Dube].
  • [7] L’Heureux-Dube, supra note 30 at 495.
  • [8] See e.g. Cass R. Sunstein et al., Are Judges Political? An Empirical Analysis of the FederalJudiciary (Washington, DC: Brookings Institution Press, 2006).
  • [9] Songer et al., “Explaining Dissent,” supra note 22 at 395.
  • [10] George H. Gadbois, Jr., “Indian Judicial Behaviour” (1970) 5:3 Economic and PoliticalWeekly 149 at 154.
  • [11] One example may be tort cases before the House of Lords: Brice Dickson, Judicial Activismin Common Law Supreme Courts (New York: Oxford University Press, 2007) at 392 (noting that“dissents are not particularly common” in tort cases, although also stressing that the House ofLords has had difficulty finding a collective approach to tort).
  • [12] Melinda Gann Hall, “Docket Control as an Influence on Judicial Voting” (1985) 10:2 TheJustice System Journal 243 [Gann Hall, “Docket Control”]; Walker, Epstein & Dixon, supra note8 at 365; Edelman et al., supra note 25 at 140; Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth,“The Norm of Consensus on the U.S. Supreme Court” (2001) 45:2 American Journal of PoliticalScience 362 at 364 [Epstein et al., “Norm of Consensus”].
  • [13] Smyth, “Some Are More Equal,” supra note 22 at 201; Benjamin Alarie, Andrew Green &Edward Iacobucci, “Panel Selections on High Courts” (2015) 65:4 University of Toronto LawJournal 335 [Alarie et al., “Panel Selections”].
  • [14] McCormick, “With Respect,” supra note 18 at 109.
  • [15] Meghan E. Leonard & Joseph V. Ross, “Consensus and Cooperation on State SupremeCourts” (2013) 14:1 State Politics & Policy Quarterly 3 at 17 [Leonard & Ross].
  • [16] Keren Weinshall-Margel, “Attitudinal and Neo- Institutional Models of Supreme CourtDecision Making: An Empirical and Comparative Perspective from Israel” (2011) 8:3 Journal ofEmpirical Legal Studies 556 [Weinshall-Margel, “Attitudinal”].
  • [17] Lawrence Wrightman, The Psychology of the Supreme Court (New York: Oxford UniversityPress, 2006) at 173.
  • [18] Epstein, Landes & Posner, Behavior, supra note 3 at 264.
  • [19] McCormick, “With Respect" supra note 18 at 106-107.
 
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