'The Brooding Spirit of the Law': Supreme Court Justices Reading Dissents from the Bench

Abstract

In rare instances, a Supreme Court justice may elect to call attention to her displeasure with a majority decision by reading a dissenting opinion from the bench. We document this phenomenon by constructing a dataset from audio files of Court proceedings and news accounts. We then test a model explaining why justices utilize this practice selectively by analyzing institutional, strategic, and ideological variables. Judicial review, stare decisis, size of majority coalition, and issue area exert influence on this behavior. Ideological distance between the dissenter and majority opinion writer produces a counterintuitive relationship. We conclude that reading a dissent is an action selectively undertaken when bargaining and accommodation among ideologically proximate justices has broken down irreparably.

Keywords: dissent, dissent from the bench, Supreme Court