For “The Intelligence of a Future Day:” Examining the Role of Supreme Court Dissents in the Development of Law

Abstract

When they disagree with the majority’s ruling in a case, Supreme Court justices may write dissenting opinions as an “appeal” to a future Court. I examine what about the topic content of a dissenting opinion could make it a more effective appeal. Theory suggests that in some legal settings, rates of future courts undermining precedents are higher when a dissenting opinion introduces a new topic into the debate, rather than talking about the same issues as the majority but simply disagreeing. I test this theory empirically, drawing on existing work using text methods on Court opinions. I find evidence for the validity of the theory within federalism cases, in which future courts distinguish cases with topically differentiated dissents faster on average. This is consistent with a substantive understanding of federalism cases. However, thinking of dissenters as adding a topic to make undermining precedent less costly for future courts is inconsistent with other empirical results.