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

Justice System Journal, Forthcoming

43 Pages Posted: 16 Jan 2009 Last revised: 20 Dec 2010

See all articles by William Blake

William Blake

University of Maryland, Baltimore County (UMBC) - Department of Political Science

Hans Hacker

Arkansas State University - Department of Political Science

Date Written: January 15, 2009

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

Suggested Citation

Blake, William and Hacker, Hans, 'The Brooding Spirit of the Law': Supreme Court Justices Reading Dissents from the Bench (January 15, 2009). Justice System Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1328496

William Blake (Contact Author)

University of Maryland, Baltimore County (UMBC) - Department of Political Science ( email )

1000 Hilltop Circle
Baltimore, MD 21250
United States

Hans Hacker

Arkansas State University - Department of Political Science ( email )

Jonesboro, AR
United States

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