How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

56 Pages Posted: 11 Nov 2005 Last revised: 4 May 2010

Vanessa Anne Baird

University of Colorado at Boulder - Department of Political Science

Tonja Jacobi

Northwestern University - Pritzker School of Law

Date Written: November 1, 2005

Abstract

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed in terms of federal-state powers. We show that when dissenting opinions signal a preference for transforming an issue into an argument about federal-state power, more subsequent cases in that area are decided on that basis. Moreover, the previous minority coalition is in the majority significantly more often, showing that these signals are systematically successful. Not only can federalism-based dissents transform the rhetoric of cases, they can systematically and significantly shift the outcome of cases in the direction of the dissenting Justices’ views.

Keywords: Supreme Court, Ideology, Dissent, Majority, Federalism, Coalition

JEL Classification: K1, K10, K40

Suggested Citation

Baird, Vanessa Anne and Jacobi, Tonja, How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court (November 1, 2005). USC Law Legal Studies Paper No. 05-21; Northwestern Public Law Research Paper No. 846585; Duke Law Journal, Vol. 59, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=846585 or http://dx.doi.org/10.2139/ssrn.846585

Vanessa Anne Baird

University of Colorado at Boulder - Department of Political Science ( email )

333 UCB
Boulder, CO 80309-0333
United States

Tonja Jacobi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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