Judicial Disharmony: A Study of Dissent

While it is well documented that judges at times disagree on case outcomes, less understood is the process by which they justify their divergence. In this article, we empirically examine how judges differ in their view of the relevant law to a case. We create a unique dataset looking at the universe of published opinions in federal appellate court cases from the United States between 2001 and 2005 that include a dissenting opinion. We find that judges who disagree on the outcome of a case disagree as to which binding precedents apply. Authoring judges gravitate toward precedents that are ideologically similar to their own preferences. Precedents cited only by the majority are strongly ideologically correlated with the majority author’s preferences; precedents cited only by the dissenting judge are ideologically similar to her preferences. Precedents cited by both the majority and dissent (i.e., precedent that both judges agree are relevant to the case before them) are not ideologically correlated with either judge. Our findings provide strong evidence that judicial differences over case outcomes do not reflect judges’ divergent interpretations of the same precedent, but gravitation towards largely different precedent.