The Lone Dissent

Abstract

What can be learned when a Supreme Court justice decides to write a lone dissent? There exists a powerful set of incentives for Supreme Court opinions to achieve consensus. Although closely divided cases grab news headlines, unanimous opinions are actually the most commonly issued judicial alignment, and cases in which a single justice dissents are the most unlikely judicial outcome. Despite voluminous academic discussion of judicial behavior, no legal scholarship has focused upon the lone dissent. This Article is designed to insert consideration of lone dissenting opinions into the broader discussion of judicial behavior.

Looking at the set of Supreme Court opinions in which there is a lone dissent from the appointment of Chief Justice Vinson in 1946 through the end of the 2022-23 term, we explain how lone dissents occur in cases of particular salience to the dissenting justice and where the stakes of the litigation create an incentive for the dissenting justice to risk institutional opprobrium in order to insert their counter interpretation of the law into the written record. This Article then goes even deeper, examining the moment a justice decides to issue a lone dissent for the first time. We conclude that these initial lone dissents are crucially important datapoints to explain a justice’s subsequent jurisprudence and judicial identity. The first lone dissent is carefully selected by each justice to signal support for important constituencies, and to definitively define the justice who must write in opposition to all of their colleagues for the first time. The examination of a justice’s legal philosophy and broader jurisprudence is incomplete without an examination of this one seminal moment of judicial behavior. 

Keywords: lone dissent, judicial behavior, dissent, dissenting, dissenting opinion, supreme court