Taming the Sexy Bad Boy of Optional Precedent: Toward a Theory of Citing Dissents
By
By
Susie Salmon[1]*
III. Dissents in the Universe of Citable Authority 385
A. Why Cite Authority at All? 385
B. Next Level of Difficulty: Why Cite Optional Authority? 388
C. One of These Things is Not Like the Other: Dissents as Counter Precedent 390
IV. Toward a Theory of Citing Dissents 394
V. Informing Theory with Data: Citations of Dissenting Opinions in the 2021 Term 401
A. Why the Supreme Court of the United States? 402
VI. Takeaways, Limitations, and Areas for Further Research 416
A. Appendix A: 2021–2022 Opinions that Cite Dissents 422
B. Appendix B: Citations by Justice 454
C. Appendix C: “Sticky” Dissent Citations 458
D. Appendix D: Opinions that Cite Dissents: By Split 465
E. Appendix E: Citations by Purpose 467
Abstract
Dissenting opinions have long generated both scholarly and practical debate and provoked both passionate defenders and steadfast opponents. But what role do dissenting opinions actually play as cited authority in judicial opinions? To what extent does our nation’s jurisprudence rely on this “opposite law”—opinions liberated from the obligation to curry consensus and the burden of binding future courts—and…well, should we be worried?
This Article is the first to address the gap in the scholarly literature regarding how courts cite dissenting opinions and to propose and defend a theoretical framework for analyzing how judges use this “counter precedent.” After surveying key literature on dissenting opinions and citation to precedent, this Article locates the uncomfortable position dissenting opinions have long held in the universe of citable authority and specifically within the nebulous category of “optional” authority. The Article then systematically outlines the purposes for which dissents might legitimately—or illegitimately—be used to support a court opinion.
The Article then goes on to test the theoretical framework by applying it to the opinions generated by the Supreme Court of the United States in its October 2021 term. The results of this empirical analysis not only disclose provocative patterns in the frequency with which—and purpose for which—the Justices cite dissents but also provide a roadmap for further scholarly inquiry into both the significance of judicial citations to dissents and how law students, lawyers, and judges can and should use dissenting opinions in their own work.
Dissenting opinions are having a moment. With the conservative-leaning supermajority on the United States Supreme Court, liberal-leaning Justices like Justice Sotomayor and Justice Jackson have authored pointed dissents peppered with meme-worthy quotations.[2] And, of course, just in the last decade the late Justice Ruth Bader Ginsburg ascended to the level of cultural icon as a famed dissenter, earning the moniker “Notorious RBG” and inspiring the first-ever Supreme Court Justice-related merch boom; the simple outline of the bejeweled-velvet Banana Republic bib necklace Justice Ginsburg dubbed her “dissent collar” became an instantly recognizable visual shorthand for the Justice herself and adorned a staggering variety of “RBG” swag items from t-shirts to jewelry to infant onesies.[3] At the same time, unprecedented public attention has focused on the Court, its Justices, and its opinions.[4] More Americans than ever before can identify at least one Justice by name,[5] and although that might seem at first blush to be a good development reflecting increased civic engagement, some blame the celebrity status conferred upon noted dissenters for the increased dysfunction of what one scholar dubbed “[o]ur Kardashian Court.”[6]
Once those famed dissents are authored, with their soaring rhetoric and memorable turns of phrase, what role do they have as precedent to be cited? Any lawyer knows that dissents are not law. Indeed, dissents are a sort of counter-precedent or anti-precedent—diametrically opposed to the majority opinion that embodies the binding law. At the same time, lawyers also know that some dissents ultimately overtake their majority counterparts and the principles and positions captured therein become the law of the land.[7] Most dissents, however, have a more modest—but hardly insignificant—role in our jurisprudence.[8] Despite their counter-precedential nature, the conventional wisdom is that dissents can be “persuasive authority”—or, as Frederick Schauer has styled it, “optional authority.”[9]
Few, if any, texts provide any guidance on how to cite dissenting opinions effectively or appropriately.[10] In addition, although scholars have written extensively about dissents and about citations to precedent, no one has studied the extent to which lawyers and judges are citing dissents in their briefs and opinions or the purposes for which they are citing those dissents.[11] Further, no theoretical framework has been developed and articulated to inform our assessment of whether a citation of a dissenting opinion is appropriate or otherwise or to guide further study. Such an undertaking would represent a huge step toward identifying any unwritten norms. Moreover, should scholars or others wish to challenge the legitimacy of judicial decision-making based in any part on the extent to which it is grounded in citations of dissenting opinions, first developing a framework for assessing the appropriateness of that citation is essential.
This Article endeavors to set forth and justify a theoretical framework that can help us understand and assess dissent citations. In part, this framework describes what we would expect to see based on existing norms regarding use of authority and the general status of dissenting opinions in our jurisprudence and sets forth the theoretical basis for those expectations. The Article then describes the results of one “pilot test” on a narrowly circumscribed dataset: a review of how the Justices of the Supreme Court of the United States cited dissenting opinions in the opinions of its 2021 term—and details the extent to which that narrow examination suggested that the practice might prove the theory correct. Finally, the Article identifies specific questions for further investigation to improve our understanding of the actual and proper role of dissenting opinions in our legal system and provides informed guidance to those seeking to cite them.
Part II identifies the gap in the existing literature on the purpose of citing authority in legal argumentation and on dissenting opinions. Part III examines some general norms regarding citation of precedent and describes the awkward position dissenting opinions occupy in the universe of citable precedent. Part IV then seeks to set forth a framework for analyzing citations to dissenting opinions, which this paper characterizes as a sort of “counter-authority.” Part V reports data about the Supreme Court of the United States’s citation of dissenting opinions in the sixty-six opinions it issued in its 2021 term. Finally, Part VI posits some takeaways from this data and identifies areas for future research to build knowledge and insight about the day-to-day role dissenting opinions play in our jurisprudence and how lawyers and judges can and should be citing them.
Although scholars have dedicated significant attention to citations to authority and to dissents in general, no one yet has focused on the question of the purposes for which judges are citing dissenting opinions.
To be sure, scholars across a variety of disciplines have examined dissenting opinions and the phenomenon of judicial dissent from a variety of angles.[12] Indeed, I have written on the topic of dissents more than once.[13] Legal historians have traced the origins of dissenting opinions and their changing prevalence in different legal systems.[14] Scholars have taxonomized them.[15] Judges and scholars have attacked or defended them.[16] Dissents have been examined through a variety of filters from the economic to the rhetorical.[17] Some have highlighted the impact of famed individual dissenters.[18] Still others have theorized as to why judges choose to write separately in dissent.[19]
Similarly, when it comes to judicial citation of authority, and even judicial citation of optional authority, scholars have studied both in great detail.[20] Many legal academics have focused on the broad topic of the role of precedent and the reasons for which judges and lawyers cite authority.[21] Researchers have conducted close examinations of the general citation habits of particular judges or justices[22] or of particular courts over a particular time period.[23] Others have collected empirical evidence regarding judicial citation of optional authority, including secondary sources such as law reviews[24] and treatises.[25] Scholars have even examined the extent to which citations in briefs lead to citations in judicial opinions.[26] None of these studies specifically examine citations to dissenting opinions, however. In fact, the vast majority even of those studies and theoretical pieces focusing on optional authority does not even explicitly discuss or consider dissenting opinions as items of optional authority a court might cite.[27]
When scholars do devote any attention to citations of dissenting opinions, they approach it with the purpose of measuring the impact that particular dissents have had on the development of the law.[28] As a result, they begin with the dissents themselves and then trace or analyze citations to those particular dissents in later cases.[29] No study or article begins with the briefs and opinions and examines those to discern how often and for what purposes lawyers or judges are citing dissents more generally. No scholar has attempted to set forth the universe of possible and permissible reasons for which lawyers and judges might cite dissents. Moreover, to the extent that scholars have devoted meaningful attention to the precedential value of dissents, that discussion has occurred almost exclusively in the context of determining the rule to be drawn from a plurality decision and the extent to which any dissenting opinions contribute to that rule,[30] not to the role of dissents as precedent more generally.
The practical literature sheds no additional light on the issue. To the extent that written guidance for judges exists regarding citing optional authority to support their opinions, such guidance is sparse.[31] For example, the Judicial Writing Manual, published by the Federal Judicial Center,[32] offers two short paragraphs on citing to case authority, including one sentence advising judges that they may cite authority from another jurisdiction where no on-point authority is available in their own.[33] The manual also adds that judges may cite secondary sources sparingly, and “only to serve a purpose” to “refer to sound analysis that supports the reasoning of the opinion,” noting that “some authors are so well respected in their fields that, absent a case on point, their word is persuasive.”[34] Other resources on judicial opinion writing similarly provide no explicit guidance on citing dissents but implicitly advise against it by disfavoring citations to optional authority.[35] For example, the fifth edition of the Judicial Opinion Writing Handbook recommends that opinion writers “be selective and cite only cases that are controlling,” and “[t]he most recent authoritative decision within the jurisdiction should be cited.[36] If there is none, then an out-of-state or secondary authority (encyclopedia, periodical, or treatise) may be used.”[37] Similarly, a leading guide for judicial clerks does not address citing dissenting opinions; the closest it comes is when it advises clerks drafting opinions to “avoid citing dicta where possible” because it is “not controlling law.”[38]
Four key pieces—all approaching the intersection between the literature studying citation to authority and the literature about dissenting opinions from different directions, but never quite entering it—get close enough to the question to help define the gap more sharply and create a starting point for thinking about what one might expect to see when judges cite dissents.
First, to date, only one scholar has focused on the question of “how lawyers and judges use cases in their arguments.”[39] In the study that formed the basis for his 2021 article, Precedent as Rational Persuasion, Professor Brian Larson examined fifty-five reported federal district court opinions resolving dispositive motions relating to the fair-use doctrine in copyright cases, along with 144 of the party briefs that led to those opinions.[40] In a pilot study, Larson first identified four different “rational uses of cases” in the opinions and briefs: (1) citing a case to support a statement that a particular legal rule exists “in the form the authors assert,” (2) citing a case for what Larson calls a “case example”—what others might call a “case illustration” or the foundation for an argument driven by analogical reasoning—“where the author describes a previous case, including facts about it and its outcome, then argues that the instant case should come out the same (opposite) way because the cases were (dis)similar,” (3) citing a case to set forth the basis for a policy argument, and (4) citing a case as part of a cumulative argument that many courts have decided a similar issue in a similar fashion and thus the instant case should be decided in the same fashion.[41] Larson then coded the selected dataset for those four case uses, as well as two others: (5) “citing a case to support a quotation from the case in a section of the argument,” and (6) citing a case for some use not clearly captured by one of the other five categories.[42] Next, Larson assessed the findings from that study to develop answers to the initial question—how lawyers and judges use cases in their arguments—as well as a second question regarding the relative frequency with which lawyers and judges used cases in each way.[43] Larson did not look specifically at any traits of the cases cited or whether the portion of the case cited was a majority, concurring, or dissenting opinion, however.[44]
Second, one of the studies that looked at citations to a defined population of dissents—counting the number of times dissents from a particular population of cases had been cited by other courts—identified some patterns useful to the inquiry at the heart of this paper.[45] The results of that study, part of a larger empirical and theoretical inquiry into legal decision-making, suggested that (1) the average Supreme Court dissent is not heavily cited, and (2) that, to the extent that Supreme Court dissents are cited, they are significantly more likely to be cited by the Supreme Court itself than by a federal court of appeals, and (3) dissents from courts of appeals are almost never cited.[46] That study, however, did not examine the purposes for which the dissents were cited or gather any additional data about those citations, it did not collect data on which judges or Justices wrote the opinions citing those cases, nor did it examine whether the opinions they reviewed cited dissents from cases outside the narrowly defined population of cases that were the focus of the study.[47]
Third, one of the few studies of citations to optional authorities—Professor Amy Griffin’s study of the Tenth Circuit’s citation to optional authorities in its 2017 term—briefly identified some reasons why a court might cite to non-binding portions of otherwise binding authority.[48] Although Professor Griffin did not look specifically at citations to dissenting opinions or quantify those citations separately in any of the many data charts in her paper, she did note that in eight percent of the cases she examined, the opinion cited to a “non-binding” portion of a Supreme Court opinion, concurrence, or dissent.[49] Professor Griffin also observed that those citations to non-binding portions of the opinion appeared to serve a handful of purposes: “to explain the majority opinion, and in particular the extent (limited or expansive) of the majority opinion; for policy support; or to support a particular interpretation of a statute or rule of procedure.”[50]
Finally, Professor Christina Frohock recently waded into the theoretical space, ultimately arguing that dissenting opinions defy categorization within the traditional binary of primary and secondary authority.[51] Calling dissents the “Schrödinger’s cat of authorities: both the law and not the law simultaneously,” Frohock concludes that dissents are a hybrid authority with traits of both primary and secondary authority, enjoying the “rhetorical leeway” of a judicial opinion while unconstrained by the responsibility of making law.[52] Although the piece provides examples of the opportunity the unique traits of the genre offer the dissent’s author, it leaves aside the question of whether, when, and how citing a dissent would be appropriate.[53]
The remaining gap—the lack of a narrowly focused theoretical or empirical project examining how judges should and do cite dissenting opinions—leaves us with only a scattershot understanding of the practical role dissenting opinions play. To the extent that any norms exist, they remain unarticulated. Absent a description of norms regarding when citing a dissenting opinion is appropriate, how do we identify when a judge has breached those norms or when citation of a dissenting opinion is notable, aberrant, or even alarming? This Article takes some initial steps toward closing that gap and sharpening our understanding of dissent citations.
In thinking about reasons for which judges might cite a dissenting opinion, it useful to begin by considering why lawyers and judges cite cases at all. Although we currently take citation to precedent as a given, scholars who have traced the history of the use of legal precedent in the courts of the United States and in the English courts that preceded them have made it clear that, although “[t]he impulse to look to the past while shaping the present has always been powerful,” the idea that some cases constitute binding precedent was hardly a given during the first years of the United States courts and instead has evolved over many centuries.[54] During the Post-Revolutionary War Era in the United States, even judges and legal scholars who agreed that precedents represented evidence of the common law and thus should be respected did not express the view that judges must—or even should—automatically follow the principles set forth in decided cases.[55] In fact, the idea that some cases, or at least particular parts of those cases, might be “binding precedent” from the moment they were decided is a relatively recent one, dating to the early nineteenth century.[56]
Nonetheless, current norms of legal argumentation provide that “no U.S. judge should write an opinion to justify a decision . . . without using previous court opinions . . . to support the argumentation in them.”[57] In the literature about why judges cite cases, variations on the words “legitimate” and “justify” dominate.[58] Opinions draw their legitimacy, at least in part, from the citations to precedent; judges justify outcomes, at least in part, by pointing to precedent that they assert unavoidably compels those outcomes.[59]
So-called “binding” precedent does the best job at this justifying and legitimizing function. By definition, binding precedent must be followed.[60] Judges delivering the news of unpleasant or unpopular outcomes arguably dictated by the facts and rules set forth in binding precedent may simply shrug and point to that precedent—their hands are tied by the decisions of previous judges, and the outcome is preordained, beyond their control. Legal scholars disagree on whether judicial citation to precedent is genuine or disingenuous or a little bit of both; precedent may be the reason for a decision, it may merely mask the true reason for a decision, or it may serve as guardrails beyond which a decision cannot careen.[61] But the ability to point to vertical or even horizontal precedent directly on point that seems to compel an outcome—or at least compel a step toward a particular outcome—at minimum provides cover for a decision in favor of that outcome.[62]
Norms regarding when judges cite precedent and what they cite, though they may be second nature or even “intuitive” to those in the profession, are informal, internal, and generally unwritten; most are simply “unarticulated background rules about what authority can be legitimately relied upon.”[63] Indeed, even foundational principles of weight and hierarchy of authority—concepts like stare decisis, the very notion of “binding precedent,” and the distinction between holding and dicta—developed not from codified law or the holding of a case but through the individual practices of judges over time.[64]In the rare instance that what constitutes citable precedent is subject to formal prescriptive rules, such rules generally represent deviations from previously entrenched norms.[65]But most norms about what and how often judges should cite are largely memorialized only through the practices of individual judges as reflected in the opinions they write.[66] Thus, examination of actual judicial citation practices is essential to understanding these unwritten norms.
Even less information exists regarding the citation of optional authority[67] or why judges might cite or credit that authority. Norms certainly permit such citation; indeed, “citation to optional authority is a routine and integral part of judicial decision-making—not only acceptable but a widely practiced aspect of opinion writing.”[68] Where binding authority on point exists, a court must follow it.[69] The prevailing wisdom holds that lawyers and courts should only be citing to optional authority when “mandatory authority leaves a ‘gap’ that must be filled.”[70]
Optional authorities do not bind a court, but they may “have a power by virtue of what they say, if they say it persuasively.”[71] To the extent that observers have endeavored to explain judicial selection of optional authority, such explanations focus on the persuasiveness of the authority’s content and a few observations about traits—like the reputation of the author—that may make the authority more persuasive.[72] Scholars have attempted to test commonly held notions of the relative persuasive weight of different types of optional authority, like the conventional wisdom that courts are more likely to find authority from nearby jurisdictions more persuasive, with mixed results.[73]
Even with these loose notions of criteria that might help predict which optional authority might be most appropriate or effective to cite, any hierarchy of persuasiveness of optional authority is always mushy at best;[74] as Frederick Schauer observed, “[a] judge who is genuinely persuaded by an opinion from another jurisdiction is not taking the other jurisdiction’s conclusion as authoritative. Rather, she is learning from it, and in this sense she is treating it no differently in her decision-making process than she would treat a persuasive argument that she has heard from her brother-in-law or in the hardware store.”[75] Thus, in some ways all optional authorities might be equally persuasive; perhaps if judges like what the optional authority says or how it says it, regardless of the source, they will cite it, or at minimum let it inform their reasoning.
Of course, in some instances, a judge or lawyer may simply be citing an optional authority because they need something to cite. Conventions dictate that assertions in a brief or an opinion be supported by citation to something, but those conventions do not necessarily dictate what that something must be.[76] As Schauer suggests, precedent-based reasoning may signify only that citing something is better than citing nothing because “a legal argument is often understood to be a better legal argument just because someone has made it before, and a legal conclusion is typically taken to be a better one if a court has either reached it or credited it on an earlier occasion,” even if other courts have reached opposite conclusions.[77] Perhaps this proposition holds true even if the judge or judges who made or credited the argument did so in the context of a dissenting opinion. It may be that, as Schauer put it, such a citation operates as “the legal equivalent of the line commonly used by the humorist Dave Barry—‘I am not making this up.’”[78]
Where do dissenting opinions fit into this scheme? As an initial matter, many noted scholars of precedent have concluded that dissenting opinions are dicta.[79] Appellate courts in the United States follow the majoritarian principle: only a majority of a court’s members can speak for the court as a whole, and only the court as a whole has the authority to make law that will bind other courts in future cases.[80] Under the traditional model of precedent, to become binding precedent, a statement of legal principle in an opinion from a multi-member court must meet two requirements: (1) it must be joined by a majority of judges or justices, and (2) it must form a necessary connection with the judgment of a majority of justices.[81] By definition, dissents fail both requirements: they represent the opinion of less than a majority of judges or justices, and they assert conclusions counter to the judgment of the majority.[82]
Even labeling statements in dissenting opinions as dicta does not clarify matters all that much, however. First, not all dicta are created equal. Dicta from the Supreme Court of the United States—even dicta from dissenting opinions—has often been stated to be binding on lower courts, particularly “clearly established” dicta that recurs in multiple opinions over time.[83] Thus, a statement from a dissenting opinion from the Supreme Court of the United States could conceivably hold significant weight in, say, a federal district court.[84]
Further, simply categorizing dissents as dicta and thus optional authority does not adequately capture their unique status as precedent. Unlike statements in a majority opinion, or the holding of an appellate or highest court in a different jurisdiction, a dissent by definition contradicts rather than supplements the law.[85] What makes dissents particularly tricky as authority is their role as a sort of counter-precedent; they exist to reject the rules and rationales set forth in the binding precedent created by the majority opinions they oppose and critique.[86] If majority opinions embody what the law is, dissents embody the opposite, the path deliberately not chosen, a species of “opposite law.”[87]
This counter-precedential nature can give dissents a destabilizing force as authority, muddying legal standards and arguably undermining the integrity of institutions and the credibility of precedent. It is no accident that many noted jurists—and especially Chief Justices—strongly discouraged dissents, and movements within the legal profession to abolish dissents gained traction at various times in the nation’s history.[88] Indeed, for approximately three decades in the late nineteenth and early twentieth century, a significant faction led a crusade to ban dissenting opinions entirely in courts of last resort.[89] Although, obviously, the dissent abolitionists ultimately failed, the primary arguments they asserted illuminate legitimate and recurring anxieties regarding the role dissenting opinions can and should play as sources of authority. For example, opponents argued that dissenting opinions rendered the law indeterminate, creating uncertainty about the state of the law in the minds of members of the profession and the public.[90] Other opponents articulated the philosophy shared by many Chief Justices over the years:[91] that courts should speak as impersonal, “composite units,” not as mere “collections of judges,” and publishing dissenting opinions risked undermining the courts’ “self-preservation as institutions.”[92]
Nonetheless, the percentage of dissenting opinions rose sharply over the early twentieth century, and for the past seventy-five-plus years, at least fifty percent and usually closer to sixty-five percent of SCOTUS opinions have accompanying dissents.[93] At the same time, unease about dissents and their effect on the force and clarity of law as embodied in judicial decisions persists.[94]
And this unease is justified; dicta—even dicta from an opinion that otherwise states the agreed-upon law—is treated as non-binding for at least two considered reasons. First, as Chief Justice Marshall explained in Cohens v. Virginia in 1821, unlike the holding—which is “investigated with care, and considered in its full extent” because it will impact the outcome as to the parties and create a rule that binds future courts and future parties—dicta has different stakes, and thus might be less precise, less careful, and less well-considered.[95] This reasoning would seem to apply with even more force to dissenting opinions; dissenting judges, unfettered by the need to obtain agreement from any of their colleagues, and animated by disagreement, frustration, or even anger, may be more even brash or reckless in their statements.[96] Second, limiting the force of dicta bounds the power of judges and limits the risk of judicial overreach.[97] The case-or-controversy requirement of the U.S. Constitution authorizes courts to create binding rules when those rules are necessary to resolve the matters immediately before them; federal courts cannot give advisory opinions.[98] Statements of rule not necessary to the resolution of the immediate controversy thus cannot be binding sources of law.[99] Although this rationale may not apply directly to every statement in a dissent—indeed, many statements in a dissent would dictate a different outcome in the case or controversy before the court and thus bear directly upon it—the notion of cabining judicial power, and particularly the power of a lone dissenting judge, does.
With all this in mind, then, we return to the questions I posed at the outset. When should a judge or advocate cite a dissenting opinion over other existing authority? For what purposes might it be most effective to cite a dissenting opinion? And when does citing a dissenting opinion breach norms in a way that implicates the reasons we do not treat dicta as binding—and the concerns anti-dissent crusaders have identified—and thereby disregard, disrespect, or even dismantle our precedent-based system?
That a judge or attorney might be tempted to cite a dissenting opinion is not particularly surprising. Indeed, the dissent is the sexy bad boy of precedent, its allure deriving from the same source as its danger. It occupies its own genre, one shaped by a freedom the authors of majority opinions do not enjoy and characterized by more vivid language, impassioned phrasing, and at times a captivatingly naked self-indulgence.[100] Majority opinions generally must be restrained, careful, and precise; they are consciously making law and must maintain consensus to remain the majority.[101] As a result, a majority opinion is less likely to coin a memorable turn of phrase; “the spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase.”[102] On the other hand, “[a] judge authoring a dissenting opinion has more of a license to tell a story and depart from the conventions of ‘traditional’ legal writing than a judge authoring a majority opinion.”[103] This license in many cases means that “[e]xuberant (or excess) prose is unconstrained.”[104] Indeed, in celebrating the “unparalleled pleasure” of dissenting, Justice Scalia admitted that the dissenter, and particularly the solo dissenter, is able to, “express precisely the degree of quibble, or foreboding, or disbelief, or indignation that one believes the majority’s opinion should engender.”[105]
Liberated from the compulsion to curry consensus and the burden of binding future courts, dissenters may shatter the stuffy rhetorical conventions of the judicial opinion and speak more authentically or poetically, generating eminently quotable sound bites. Indeed, “when pressed, most appellate judges will admit that ‘one discovers in [dissents] after all, a place for the genuine.’”[106] As a result, “[d]issents contain some of the most creative variations of legal writing,”[107] and “often exude an infused passion, an expressive potency, and even a telltale hint or two of not-so-latent literary leanings—together with other dynamic and imaginative qualities—that are typically lacking in more homogenized majority opinions.”[108] Thus, judges may find themselves helpless to resist the siren song of the dissent, enticed to quote a pithy phrase or vivid exhortation from a dissenting opinion over the comparably pallid prose of binding precedent.
But even if we understand why citing a dissenting opinion might be attractive, some dissent citations are more justifiable—and less troubling—than others. It helps to think of dissent citations as falling on a continuum. At one end of that continuum are citations that, instead of occurring despite the dissent’s role as counter-precedent, occur precisely because the dissenting opinion contradicts the prevailing legal standard or, more narrowly, the particular majority opinion to which it responds.[109] The paradigmatic example would be a dissent citation in support of an argument to overturn precedent and flip the law in favor of the position set forth in the dissent.[110] Less extreme but also toward that end of the continuum would be those citations that support critiques of the majority opinion to which the dissent responds or seek to cabin or otherwise define the impact of that opinion.[111] Similarly, a judge might deploy citations to dissents to illustrate disagreement and thus lack of clarity in the law.[112] Such citations use dissents frankly and transparently as what they are—perhaps what the law should be, but not currently the law. The judge is simply citing the dissent to show that someone else agrees with the proposition being asserted or shares the concern being voiced, or to illustrate disagreement or confusion.[113] At the other end of the continuum are those citations that most implicate the concerns about dicta as precedent: citations that treat the dissent as law, pointing to dissents as a source for a rule that compels a particular outcome, and treating the dissent as a source of—or at least on the same level as—binding precedent. [114]
Probably the least surprising dissent citation would be one that honors the dissenting judge’s core purpose: that “appeal . . . to the intelligence of a future day,” to seek or justify a “decision [that] may possibly correct the error in which the dissenting judge believes the court to have been betrayed.” [115] Indeed, such citations are the ones that have received the lion’s share of the scholarly attention.[116] We would expect those to occur when social mores—or the ideological composition of the relevant court—have changed such that the arguments advanced by the dissent become more likely to find majority support. Thus, we would particularly expect to see dissents cited in ideologically charged cases, where the cynical might say predicting an outcome requires only the ability to “count to five.”[117] By that same reasoning, we would also be unsurprised to see an appellate judge citing the dissent from the opinion under review.
In addition, the dissenting opinion’s unique role as counter-precedent, positioned in opposition to the majority’s reasoning and outcome, makes it particularly suitable to cite as precedent for three other specific purposes: (1) to characterize or cabin the rule created by the majority opinion, (2) to critique the rule created by the majority opinion, and (3) to advocate that precedent be overturned. Some of the existing research on dissent citation supports this.[118] For example, in her study of “canonical dissents,” Professor Anita Krishnakumar observed that one of two reasons courts seemed to cite those dissents was as “warnings.”[119] Such judges cited the famous dissents to provide examples of doctrines that led to unworkable or “morally repugnant” results—and to support an argument that the path the judge was choosing to reject would lead to similar catastrophe.[120] For example, Professor Krishnakumar observed that Justice Harlan’s dissent in Plessy v. Ferguson is often cited for its “symbolic power as a voice of caution against a doctrine that later experience has proven to be anathema” and that the dissent in Korematsu is frequently cited for similar reasons.[121] Similarly, citations to Holmes’s Lochner dissent in the New Deal era tended to reflect a “judicial reaction to the country’s lived experience under the Lochner doctrine” and a repudiation of the economic rights jurisprudence that Lochner represented.[122]
By definition, dissents evidence disagreement among judges as to what the law is or should be.[123] As a result, one would anticipate that another reason for which a judge might cite dissents would be to illustrate such disagreement. Judges might have several reasons for wishing to demonstrate disagreement among courts, including as evidence that the law is unclear, that a decision creates an unworkable standard, or that a principle might not be as widely accepted as some might assert.[124]
All these examples fall neatly into the category of citing dissents as counter-precedent. The citer is not pointing to the dissents as a source of rule but as evidence that not everyone agrees with the status quo, and some of those disagreeing have done so with particular force, stature, or eloquence. But those are not the only expected or even appropriate reasons that an advocate or judge might cite to a dissenting opinion.[125] Other citations acknowledge or even leverage the dissenting opinion’s opposite-law nature and perhaps even its author’s lone-wolf, outsider role.[126]
One such reason we might anticipate a judge to cite a dissent—or a lawyer to cite a dissent in a brief to that judge—is a strategic one: when that judge authored or joined the cited dissent.[127] I have thought of this as an “as I’ve been saying . . .” citation, but Professor Richard Re has coined a more sophisticated term to describe this phenomenon: personal precedent.[128] Personal precedent refers to “judges’ presumptive adherence to their own previously expressed legal views, as contrasted with the institutional precedent issued by court majorities.”[129] Judges have many reasons to seek to be and appear consistent with their own past views—maybe even more so now, in the age of the celebrity Justices—and some likely care more about that personal consistency than they do about institutional consistency.[130] This circumstance may motivate dissent citations in a few different situations. A judge may cite another judge’s dissent to nudge that judge to vote in a manner consistent with those views in a new case.[131] Or a judge who fears that their colleague may—for institutional, political, ideological, or other reasons—vote in a manner arguably inconsistent with the judge’s previously stated views will nudge that judge toward consistency with a citation of the judge’s own words. Similarly, in the “as I’ve been saying…” vein, a judge whose opinion defies precedent may cite their own dissent to justify that action, demonstrating consistent disagreement with a wrong-headed line of reasoning or outcome.[132] Or a judge may “shame cite” a dissent authored by a judge joining an opposing opinion, calling that judge out for inconsistency with personal precedent. [133]
On the other hand, the nature of dissents as counter-precedent would make it particularly surprising—or even somewhat of a red flag—if a lawyer or court cited a dissenting opinion in a way that assumes that the precedent at issue sets forth a rule. Here, I use the word “rule” in the way legal philosopher Ronald Dworkin has done in distinguishing between legal “rules” and legal “principles”: legal “rules” are standards that must be applied when a case presents a certain set of circumstances.[134] They apply “in an all-or-nothing fashion,” and if the facts contemplated by a rule are presented by a case, that rule compels a particular outcome.[135] In looking at the coding categories Professor Larson used in his study, for example, at least three of his “rational uses of cases” contemplate citing a case in a way that invokes a legal rule: (1) citing a case to support a statement that a particular legal rule exists “in the form that the authors assert,” (2) citing a case for a “case example,” “where the author describes a previous case, including facts about it and its outcome, then argues that the instant case should come out the same (opposite) way because the cases were (dis)similar,” and (3) citing a case as part of a cumulative argument that many courts have decided a similar issue in a similar fashion, and thus the instant case should be decided in the same fashion.[136]
Citing a dissenting opinion for any of these three purposes would seem irrational for a few reasons. First, because a dissenting opinion is not binding precedent, it cannot set forth a rule that compels an outcome in any future case.[137] Second, in many instances, any “rule” the dissent purports to propose directly contradicts the “rule” set forth in the corresponding majority opinion; the law compels the opposite outcome.[138] In that circumstance, it would make no sense for a judge to cite a dissent for the proposition that a legal rule exists or to analogize to the dissent’s application of a rule to a particular set of facts, and it would make little more sense to cite the dissent as cumulative support. To the extent that the dissent agrees with the majority’s statement of the rule and simply argues that the majority misapplied that rule to the facts, (1) that argument about how the rule should apply contravenes binding law, and (2) it makes more sense to cite the majority opinion itself for the rule statement.[139] Third, even to the extent that, in the process of responding to a majority opinion, a dissent happens to state a legal rule that is good law and supported by binding precedent, it would make no strategic sense to cite the dissent for that proposition. In fact, citing an optional authority to support what one asserts to be a rule might even suggest that the statement was not, in fact, a binding rule because it has no visible support in mandatory authority.[140] At minimum, citing an optional authority to support a rule statement would undercut the legitimacy and persuasiveness of that rule statement. Indeed, for a judge to cite a dissent to support a rule statement—particularly if binding precedent exists to support that rule—arguably either signals sloppiness or communicates some level of disregard for the role of precedent.
On the other hand, citing a dissenting opinion to support an assertion of what Dworkin would characterize as legal “principle” makes more sense. Unlike legal rules, principles do not set forth legal consequences that follow automatically when the conditions provided are met.[141] Rather, a principle is a consideration that may be implicated by the facts of the case, and, if it is, it merely tips the balance in one direction or another.[142] In particular, methodological principles, such as an opinion’s endorsement or rejection of using textualism, or legislative history, or other interpretive methods, are generally not considered to bind future judges or justices.[143] Because legal principles do not compel outcomes, citing authority that need not be followed—and even counter-precedent that disagrees with the authority setting forth a governing rule—would be more appropriate, or at least not jarringly inappropriate. Further, dissents frequently turn on and develop broad legal principles and thus might be good sources for powerful, resonant expressions of those principles, making citation to them particularly tempting.[144] In much the same vein, statements of public policy in an opinion would almost certainly be dicta, and dissenting opinions often assert public policy that the majority opinion would contravene.[145] Thus, for similar reasons, citing a dissent as evidence of public policy would not be overly problematic.
In fact, the limited research tracing the citation of particular dissenting opinions seems to support this hypothesis.[146] In her study of so-called “canonical dissents”—a small group of dissents that “not only have shaken off the stigma of the losing position but have come to command a constitutional stature far superior to that accorded most majority opinions in other cases”—Professor Anita Krishnakumar concluded that one of two key reasons judges cite to those dissents is to support assertions of broad principles.[147] For example, judges cite to the dissents in the “free speech cases” and in Olmstead to support broad Constitutional principles rather than to reject the rules embodied by the holdings of the majorities in those cases.[148] Similarly, Justice Harlan’s dissent in Poe v. Ullman[149] is often cited because it “rested on an expansive construction of the word ‘liberty’ in the Fourteenth Amendment’s due process clause”—again, a citation to support the assertion of broad Constitutional principles rather than narrow rule statements.[150]
With this framework for dissent citation in mind, we turn to applying that framework to one real-world example. This Part reports data based on a quantitative and qualitative analysis of the sixty-six opinions issued by the Supreme Court of the United States during the 2021 term. Section A explains why looking first at how SCOTUS cites dissents makes sense. In a similar vein, Section B discusses the reasons behind using all the opinions issued during the 2021 term as the dataset for this pilot test. Section C describes the methodology used to identify, describe, and code the citations to dissenting opinions in those opinions. Section D presents the resulting data.
Although, for many reasons, the Supreme Court of the United States is not the most representative of the practices of everyday judges, it makes a good subject for a pilot study for several key reasons. First, because the Court is the highest authority in our court system, no vertical precedent binds it, and it can reverse its own horizontal precedent if it so chooses.[151] As a result, the Court has more flexibility to cite and rely on optional or even counter-precedential sources in its opinions. Thus, if any court is citing dissents with any regularity, the Supreme Court of the United States is the most likely court in which to observe this practice.
Second, the Court generally accepts for review only the most difficult cases.[152] Cases in which the Court grants certiorari often present issues on which the federal circuit courts of appeal have reached conflicting conclusions, or issues of nationwide importance or significance.[153] The fact that lower courts disagree suggests that the cases turn less on clear, dispositive rules and more on the interpretation and application of broad principles. Thus, if it is true that a court is more likely to cite dissents to support assertions of principle rather than assertions of rule, such an opportunity would present itself with more frequency in cases before the Supreme Court of the United States.
Further, in light of the Court’s position atop the United States court system and its role in setting rules and norms for courts and attorneys,[154] it makes some sense to look to the Justices of the Court for clues as to norms, including when it comes to citing precedent. Of course, unlike judges on intermediate courts of appeal or trial courts, Justices on the Court are not subject to any vertical precedent.[155] And, of late, they seem less inclined to see themselves as constrained by stare decisis.[156] As a result, they have unique flexibility in selecting authority to justify their decisions. Nonetheless, because of its role and position, looking to the Court’s dissent-citation practices as an initial step can help inform a broader inquiry in the future.
Looking to the Court is also useful because we just generally have more knowledge about the views, practices, philosophies, and personalities of the Justices on the Supreme Court of the United States than we do about other judges.[157] For example, we know that Chief Justice Roberts shares former Chief Justice Marshall’s strong preference that the Court as an institution speak with a unified voice and, as a result, also shares Marshall’s general aversion to dissents.[158] Thus, examining how often Roberts cites to dissenting opinions in a single term is, at minimum, interesting. Similarly, Justice Thomas has been open about his disdain for stare decisis; he has “made it clear that he does not follow precedent.”[159] If it is true that citing more dissenting opinions correlates with a lesser regard for precedent, then we would expect to see Justice Thomas cite notably more dissenting opinions than his fellow Justices do. The 2021 Term was Justice Barrett’s first with the Court; whether and how she cites dissents as a new Justice might give an indication of her own judicial philosophy.[160]
In large part, I chose the 2021 term as the subject for my pilot test because I thought that if Supreme Court Justices were citing dissenting opinions with any regularity, they almost certainly would be citing dissents during a term in which the Court decided a number of momentous and politically charged cases and overturned or abrogated longstanding precedent. The 2021 term fit that description, of course; that term not only saw the Court overrule Roe and Casey in Dobbs v. Jackson Women’s Health Organization,[161] but also saw the Court confirm in Kennedy v. Bremerton School District[162] that it had abandoned the fifty-year-old Lemon test in Establishment Clause cases.[163] The Court also issued polarizing opinions in controversial Second Amendment,[164] Free Exercise,[165] and ineffective assistance of counsel[166] cases, among others. If my hypotheses were correct that courts are more likely to cite dissents when overruling or abrogating precedent or in controversial cases where the court was divided along ideological lines, then I would expect to see a number of dissents cited in this term.
I also suspected that the 2021 term could be an interesting subject because it was the first full term with the 6-3 ideological split and conservative supermajority created when Justice Barrett was confirmed to replace the late Justice Ginsburg on the Court in October of 2020.[167] If Justices would be more likely to cite dissenting opinions in cases presenting particularly controversial, polarizing issues—with one symptom of a “polarizing” issue being an opinion reflecting a Court split along ideological lines—then that phenomenon should be particularly visible in this term.
Beginning with this term also sets up the opportunity for some interesting and illuminating contrasts. For example, the 2023 term shaped up to be one that rivaled the 2021 term in terms of reversing and eroding precedent and cases fraught with public controversy.[168] Comparing the data on dissent citations in the 2023 term with that of the 2021 term, and then contrasting that with data on dissent citations in a less “noisy” term—perhaps the 2005 term, one of the only terms since the 1940s in which over fifty percent of the Court’s opinions were issued without dissenting opinions[169]—could further support the hypothesis that the Justices are more likely to cite dissents in terms in which it is more divided.
I, and at least one of my research assistants, examined every opinion issued by the Supreme Court of the United States during the 2021 term[170] to determine whether it cited any dissenting opinions.[171] We only counted citations to “pure” dissenting opinions, not to opinions concurring in part and dissenting in part; that process made the analysis cleaner, and we did not have to scrutinize the opinion to determine whether the portion cited was true counter-authority, as characterized in this paper, or whether it supported the outcome determined by the majority opinion. On the other hand, omitting citations to opinions concurring in part and dissenting in part eliminated many citations to notable text critiquing precedent, including many citations in the Dobbs majority to opinions concurring in part and dissenting in part in Planned Parenthood v. Casey.[172]
We counted each dissent citation, including “id.” and “ibid.” citations. If an opinion cited to a dissent several times in one paragraph, for example, we counted each of those citations as one citation to a dissent. If an opinion cited to a dissent to that same opinion, however, we did not include that citation in the count; an attorney appearing before the Court in a particular case would not have been able to cite the dissenting opinion in that same case in their own briefs, so citations to those “internal” dissents would not provide particularly instructive insights for attorneys. Further, such citations would almost always be for the purposes of response or refutation rather than any reliance on the cited dissent for some form of authority. That said, we did count any citations to the dissent in the lower court opinions in the case under review because I anticipated that it would be fairly common practice for an attorney to cite the dissent from the opinion below in asking the court to reverse that opinion.
We also included citations to dissents in other cases decided in the 2021 term in our count. Although the parties likely did not have access to those dissenting opinions at the time they wrote their briefs—although depending on the briefing schedule, it is possible that they could have—including those citations in our analysis still provided instructive information because we did not think that whether a dissent was issued in the immediately previous term or the current term meaningfully changed what we could learn from a citation to it. Further, we believed it would be more likely that the Justice citing that dissent would be relying on it as some form of authority rather than responding to or refuting assertions made in it.
For each citation to a dissenting opinion, we then recorded the following information in a spreadsheet:
I and at least one of my research assistants also examined the text surrounding the dissent citation to discern the purpose for which the Justice seemed to be citing the dissenting opinion. Based on the framework set forth in Part IV of this paper, we coded each citation as serving one or more of the following purposes:
For each of the sixty-six cases before the Supreme Court of the United States in the 2021 term that resulted in an opinion, we also reviewed the party briefs[175] for dissent citations. Although we collected and logged in a spreadsheet various types of data about the briefs,[176] for the purposes of this paper, I only reviewed whether any of the dissent citations in the briefs were “sticky,” that is, whether any of the dissent citations in the briefs seemed to cause matching citations in the resulting opinion.[177] In looking at “sticky” citations, I was more interested in whether the portion of the dissent cited in the opinion was also cited on one of the party briefs, largely because I was interested in whether it seemed like the Court was citing to the dissent sua sponte or because it was influenced by some source other than the party briefs.[178] Attempting to discern the traits of dissent citations that “stick” in the resulting opinion, although a worthy subject of further study, is beyond the scope of this paper.
First, the Court is definitely citing dissenting opinions, or at least it did in its 2021 term.[179] In fact, the Court cited to a dissenting opinion at least once in forty of its sixty-six opinions in that term.[180] In the term overall, the Court cited to a dissenting opinion a total of 201 times.[181] Seventy-five of those dissent citations were in majority opinions, forty-six in concurrences, four in opinions concurring in part and dissenting in part, and seventy-seven in dissenting opinions.[182] Of the seventy-five citations to dissents in majority opinions, twenty-five came in footnotes.[183] In counting only pure dissenting opinions—rather than opinions concurring in part and dissenting in part—this number of citations to majority opinions arguably undercounts citations to dissenting principles; in his majority opinion in Dobbs and the footnotes thereto, Justice Alito cited to a dissenting opinion twenty-five times,[184] but he also cited frequently to opinions concurring in part and dissenting in part, particularly those from Planned Parenthood v. Casey.[185]
Second, some Justices cite dissents significantly more than others do.[186] Justice Thomas has the most citations to dissents with sixty-six.[187] Justice Alito is next, with thirty-five,[188] but again Dobbs skews those numbers; without Dobbs, Alito cited dissenting opinions only ten times, which drops him to seventh.[189] Justice Gorsuch is next with twenty-nine.[190] Justice Breyer barely edges out Justice Sotomayor: he cited to dissenting opinions twenty-five times to her twenty-two;[191] both of those totals include nine dissent citations in the jointly authored dissent in Dobbs.[192] Justice Kagan cited dissents eighteen times,[193] with half of those citations coming in the jointly authored dissent in Dobbs, and Justice Kavanaugh follows with eleven dissent citations.[194] Finally, and perhaps unsurprisingly, Chief Justice Roberts and Justice Barrett cited dissents rarely; Roberts cited dissents only times, and Justice Barrett only twice.[195]
Third, the majority of the dissents cited came from opinions of the Supreme Court of the United States.[196] Thirty-three of the citations were to dissents from lower courts (primarily federal courts of appeal).[197] Of those, twenty were citations to the dissent in the opinion under review; the others were citations to dissents in other lower court opinions.[198]
Fourth, of the 201 dissent citations, only thirty represented “sticky” citations, where the Court’s citation of a dissenting opinion appeared to echo a similar citation in one of the party briefs.[199] The remaining 171 dissent citations may have been prompted by a citation in an amicus brief or come from the citing Justice sua sponte.
It does seem that, at least in the 2021 term, Justices were substantially more likely to cite to dissents in their opinions in cases where the Court was split along ideological lines.[200] Because the Court in the 2021 term had six Justices appointed by Republican presidents and three Justices appointed by Democratic presidents, a 6-3 decision frequently reflects such a divide.[201] In the 2021 term, sixteen opinions were decided 9-0, and five of those opinions cited dissents; twelve opinions were decided 8-1, and nine of those cited dissents; five cases were decided 7-2 and four of those cited dissents; nineteen cases were decided 6-3, and seventeen—almost all—of those majority opinions cited dissents; ten cases were decided 5-4, and five of those cited dissents.[202] Of the 201 dissent citations in opinions issued in the 2021 term, 130 were cited in majority 6-3 decisions.[203] Another eight were cited in majority 5-4 decisions.[204]
In terms of the purposes for which Justices cited dissents, the most common purpose was to identify the source of a quotation; 121 of the dissent citations supported quoted language, whether that language appeared in the body of the opinion citing the dissent or in a parenthetical to the citation.[205] Aside from some notable exceptions,[206] much of the quoted language was not particularly poetic or magical, however, suggesting that the unfettered rhetorical flair of some dissents might not be the primary appeal of citing dissents, at least for United States Supreme Court Justices.[207]
By far the most common substantive purpose for citing a dissenting opinion was to critique precedent or advocate that precedent be overturned: eighty-four of the 201 citations to dissents used those dissents as primary or supplemental support for a statement criticizing the reasoning of a case, criticizing the development of a line of precedent, or bluntly advocating that a case be overruled.[208] A number of other dissent citations similarly used a dissenting opinion in a way consistent with its role as counter-precedent: thirteen cited a dissent to cabin or characterize rules or principles drawn from the majority opinion to which the dissent responded,[209] fourteen cited a dissent to support an argument that judges or courts disagreed,[210] and eight provided cautionary tales that supported a “warning” regarding the likely impact of an opposing opinion.[211]
A significant number of the dissent citations represented some deployment of what Professor Richard Re has dubbed “personal precedent,” whether that be the “personal precedent” of the author citing the dissent, or “personal precedent” of another Justice on the Court.[212] At least forty-six times, a Justice cited a dissent either to illustrate their own consistency as to what the law is or should be, or to call out another Justice for being inconsistent with what that Justice has written or held in the past.[213] On at least a couple of occasions, a Justice cited a previous dissent of a Justice joining in the current opinion; for example, in his majority opinion in Bruen, Justice Thomas favorably cited Justice Kavanaugh’s dissent from the D.C. Circuit’s opinion in Heller three times.[214] In general, some of the Justices do not shy away from citing themselves: when citing dissents, Thomas, Breyer, Alito, and Sotomayor cited their own dissents most frequently.[215] And the Justices often seem to cite each other strategically, whether citing dissents authored or joined by others who join them in their current opinion, or citing dissents authored by Justices on the Court who oppose them.[216]
Fifty-two of the dissent citations supported an assertion of a broad legal principle.[217] Only eleven dissent citations supported what could arguably be characterized as coming close to being a statement of a legal rule.[218] Nine of those dissent citations were from Justice Thomas.[219] In four of those instances, Thomas cited his own past dissents: once, he cited his consistent stance that due process does not apply in certain circumstances,[220] twice, he cited his consistent stance that the Federal Arbitration Act does not apply in certain circumstances,[221] and once he cited his consistent stance that abortion providers lack standing to assert the rights of their potential patients.[222] Twice, he cited Scalia dissents: once asserting that due process did not apply to a certain circumstance,[223] and once asserting that the Court was required to deny habeas relief.[224] And three of the rule citations involved Justice Thomas citing a dissent wherein Chief Justice Roberts characterized a rule from a majority opinion in a third case very narrowly, and Thomas adopted that characterization.[225] One dissent citation to support a rule came from Justice Breyer, who cited an Alito dissent to support the standard of review.[226] The final dissent citation was from Justice Gorsuch, who asserted that “courts have consistently held” something and cited the dissent from a 1793 opinion as initial support for that assertion.[227]
Only fifteen dissent citations fell completely outside of the categories I had identified.[228] Of those, half involved adopting a dissenting opinion’s statement or characterization of facts involved in or related to the litigation.[229] Others, unsurprisingly, involved agreeing with the reasoning of the dissent in the lower court in a case in which the Court would reverse.[230] In one instance, Chief Justice Roberts cited a dissenting opinion as a “see also” citation accompanying a citation to the majority opinion in the same case, using both to support an illustrative example of how one state court rejected a rule from the Restatement.[231]
Although of course this examination of citations from a single term, a single court, and a court uniquely situated to be flexible in its use of precedent obviously has its limitations, it does offer some intriguing insights into at least one court’s receptivity to citing dissenting opinions and how the willingness to cite dissenting opinions as precedent reflects other aspects of judicial philosophy. Further, this study suggests several more narrowly focused research inquiries that should prove even more illuminating. And, at minimum, the fact that the highest court in the nation cites dissenting opinions consistently and for a variety of purposes suggests that the Court sees dissenting opinions as acceptable sources to cite under certain circumstances. Additional studies can test the theoretical framework set forth in this paper on different datasets and from different angles and further illuminate the role dissenting opinions play in judging and lawyering.
Replicating this study on representative datasets of opinions from intermediate appellate and trial courts in both the state and federal system could provide deeper insights into how frequently and for what purposes courts are citing dissenting opinions and further test the theoretical framework set forth in Part IV. For example, this paper asserts that dissent citations are more appropriate and defensible to support broad principles.[232] Since cases before the Supreme Court of the United States largely implicate the Constitution and thus likely involve sweeping principles,[233] it seems probable that the Court would be more likely to cite dissenting opinions than would courts at the intermediate appellate or trial level. Replicating this study on a representative dataset of opinions from a federal appellate court could confirm or refute this hypothesis and shed a brighter light on the influence dissenting opinions have on the law at various levels of our court system.
Although a close analysis of each Justice’s individual citations to dissenting opinions is beyond the scope of this article, the extent to which the number of dissent citations varied by Justice supports an argument that a willingness to cite dissenting opinions says something about a Justice’s judicial philosophy and attitude toward precedent. Indeed, perhaps a propensity to cite dissents—particularly where binding precedent is available to support a proposition—may serve as a sort of “canary in the coal mine,” signaling the erosion of traditional notions of precedent and hierarchy of authority that those who sought to ban dissenting opinions feared. For example, it is perhaps unsurprising that Justice Thomas cited to dissents the most frequently and even occasionally cited to dissents as primary or supplemental support for legal rules. In his concurrence in Gamble v. United States,[234] Thomas clearly articulated his views on stare decisis, which arguably boiled down to “we only have to follow precedent if we agree with it.”[235] Additionally, Thomas largely cited his own dissents—precedent with which he presumably agrees—signaling repeatedly that he often found his own version of the law more compelling than that enshrined in precedent.[236] A closer and more thorough examination of Justice Thomas’s citations to dissenting opinions over his now almost thirty-five years on the Court could supplement existing scholarly work on his jurisprudence, his judicial philosophy, and his impact on the Court and the rule of law.[237]
By contrast, Chief Justice Roberts seldom cited to dissenting opinions, only citing a dissent six times during the 2021 term.[238] Roberts also tended to cite dissents in ways that acknowledged and even leveraged their status as counter-precedent.[239] For example, one Roberts dissent citation acknowledged, and implicitly disagreed with the reasoning behind, a dissenting opinion’s characterization of the majority opinion.[240] Another used a dissent as one of several examples to show that Justices agreed on a core principle, even across an ideological divide.[241] Still, another served as an illustrative example of how one jurisdiction approached a particular legal issue.[242] This sparing, selective use of dissenting opinions seems consistent with Roberts’s emphasis on consensus and judicial restraint and his avowed commitment to safeguarding the institutional integrity of the Court.[243] Corroborating that pattern by looking at Roberts’s citations to dissents in other terms could further support this connection between a particular judicial philosophy and a propensity to cite—or avoid citing—dissents.
Similarly, Justice Barrett, new to the Court in the 2021 term, cited to dissenting opinions only twice, both times in ways that acknowledged the dissents as counter-precedent—once to illustrate disagreement among courts,[244] and once to support a critique of precedent.[245] Her reluctance to cite dissents could reflect the cautiousness of a new member to the Court, or it could suggest something about her judicial philosophy; watching her pattern of dissent citations in later terms could be interesting.
If a propensity to cite dissenting opinions suggests an erosion of stare decisis or a general disregard for the role of precedent, tracking the Court’s citation to dissents over time and tracking trends could be illuminating. Replicating this study with different terms of the Supreme Court would give us an idea of, for example, whether citations to dissents tend to increase in connection with an increased willingness to overturn established precedent or judicial statements expressing such a willingness.
The fact that very few citations to dissenting opinions even came close to purporting to support legal rules is perhaps reassuring for those who fear a precipitous erosion in the rule of law;[246] perhaps the dissent doomsayers of yore were more Chicken Little than Cassandra. That said, this study did not closely examine whether Justices were citing dissents to support legal rules or principles where a majority opinion on point was available. Law students and lawyers are told to cite optional authority only as a gap-filler, when no binding authority on point exists.[247] If Justices on the United States Supreme Court favor precedent based on who authored it, for example, rather than hierarchy of authority, at minimum that undermines traditional notions of precedent. A broader examination of citations to dissents to support rule statements over multiple terms, in connection with research into the other precedent available on point, could support a more pointed critique.
Although this study did note whether dissent citations in Supreme Court opinions corresponded with a matching “sticky” citation in a party brief, it did not examine whether the opinion cited the dissent in the same way or for the same purpose. A closer examination of how the top advocates before the United States Supreme Court cite dissenting opinions, including the purposes for which they cite dissents, how they introduce and frame that discussion in the brief, and what strategies seem to correlate most with a corresponding citation in the Court’s opinion could inform advice to lawyers and law students about effective practices.
To further develop actionable guidance for everyday lawyers, judges, and law students regarding how to cite dissenting opinions effectively and appropriately, researchers could replicate this study on datasets of briefs and opinions from trial and intermediate courts, both at the state and federal level.
The role amicus briefs play in inserting dissenting opinions into the jurisprudential dialogue similarly warrants focused examination. Much has been written of late about the extent to which amicus briefs influence the modern Court;[248] examining the extent to which and the purposes for which amicus briefs cite dissenting opinions, and how often those citations seem to correspond with a matching citation in the resulting opinion could provide further evidence of the nature and extent of that influence.
Finally, in terms of concrete, defensible takeaways for judges, lawyers, and law students regarding the purposes for which they might permissibly and effectively cite dissents, the data from this term of the Court tentatively supports a few norms, particularly for those writing to a court with more latitude to overturn or deviate from precedent. The Court’s willingness to cite dissents as counter-authority to critique precedent, justify overturning precedent, illustrate disagreement among courts and judges, and characterize the scope or nature of the rules or principles articulated by the majority opinion suggests that advocates might do the same. Unsurprisingly, citing strong analysis from the dissenting opinion in the case under review makes sense for the party seeking reversal. And invoking a jurist’s own “personal precedent” by citing to that jurist’s dissents seems a safe bet as well.
Although conversations about dissenting opinions have raged for centuries, this paper opens a new and important thread. After elucidating the uncomfortable and sometimes ominous space dissenting opinions long have occupied in the universe of citable precedent, this paper then sets forth and justifies the first theoretical framework for analyzing citations to dissenting opinions. Considering what this paper identifies as the dissenting opinion’s nature as “counter precedent,” the paper identifies and categorizes the purposes for which courts might appropriately cite dissenting opinions. On the flipside, the paper also isolates categories of dissent citations that might serve as red flags for something more sinister. This framework can serve as a tool for future scholars seeking to examine and critique the role citations to dissenting opinions play in our jurisprudence more generally or in the jurisprudence of particular jurists. Indeed, this paper tests that theoretical framework through an empirical examination of citations to dissenting opinions by the Supreme Court of the United States in its 2021 term and thereby sheds light on the extent to which at least one court is citing dissenting opinions, the purposes for which that court is citing dissenting opinions, and any potentially problematic patterns those citations disclose.
This paper also serves as a further entry in support of the argument that the precedent cited to justify a legal argument matters. I hope that future scholars will pick up some of the empirical threads left unpursued by this paper and further build our understanding of the authority that underpins the legal opinions that shape—and at times arguably erode—our nation’s law. This inquiry is particularly urgent now, as we enter an era when the rule of law is under assault as never before, and members of the profession and the academy find themselves called upon to defend principles and institutions we previously took for granted. I also hope that continued empirical study will inform advice that can guide judges, lawyers, and law students to most effectively and ethically leverage the power of dissents to right past wrongs and steer our legal system and our nation on a course toward greater justice for all.
| Alito | |
| Total citations to dissents | 35[250] |
| In majority opinions | 27 |
| In concurring opinions | 2 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 6 |
| Total “sticky” citations | 5 |
| Dissenting justices most frequently cited: | |
| Alito | 10 |
| Thomas | 5 |
| White | 5 |
| Citations to dissent authored or joined by justice joining current opinion | 7 |
| Barrett | |
| Total citations to dissents | 2 |
| In majority opinions | 0 |
| In concurring opinions | 1 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 1 |
| Total “sticky” citations | 0 |
| Dissenting justices most frequently cited: | |
| Scalia | 1 |
| Citations to dissent authored or joined by justice joining current opinion | 1 |
| Breyer | |
| Total citations to dissents | 25[251] |
| In majority opinions | 1 |
| In concurring opinions | 3 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 21[252] |
| Total “sticky” citations | 1 |
| Dissenting justices most frequently cited: | |
| Breyer | 10 |
| Scalia | 3 |
| Citations to dissent authored or joined by justice joining current opinion | 5 |
| Gorsuch | |
| Total citations to dissents | 29 |
| In majority opinions | 8 |
| In concurring opinions | 18 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 3 |
| Total “sticky” citations | 4 |
| Dissenting justices most frequently cited: | |
| Gorsuch | 6 |
| Scalia | 5 |
| Citations to dissent authored or joined by justice joining current opinion | 6 |
| Kagan | |
| Total citations to dissents | 18[253] |
| In majority opinions | 2 |
| In concurring opinions | 1 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 15[254] |
| Total “sticky” citations | 4 |
| Dissenting justices most frequently cited: | |
| Scalia | 5[255] |
| Sotomayor | 4[256] |
| Citations to dissent authored or joined by justice joining current opinion | 3 |
| Kavanaugh | |
| Total citations to dissents | 11 |
| In majority opinions | 6 |
| In concurring opinions | 5 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 0 |
| Total “sticky” citations | 3 |
| Dissenting justices most frequently cited: | |
| Rehnquist | 2 |
| Roberts | 2 |
| White | 2 |
| Citations to dissent authored or joined by justice joining current opinion | 2 |
| Roberts | |
| Total citations to dissents | 7 |
| In majority opinions | 5 |
| In concurring opinions | 2 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 1 |
| Total “sticky” citations | 2 |
| Dissenting justices most frequently cited: | |
| Kavanaugh | 2 |
| Citations to dissent authored or joined by justice joining current opinion | 2 |
| Sotomayor | |
| Total citations to dissents | 22[257] |
| In majority opinions | 0 |
| In concurring opinions | 0 |
| In opinions concurring in part/dissenting in part | 0 |
| In dissenting opinions | 22[258] |
| Total “sticky” citations | 1 |
| Dissenting justices most frequently cited: | |
| Sotomayor | 7 |
| Breyer | 3 |
| Kagan | 3 |
| Scalia | 3 |
| Citations to dissent authored or joined by justice joining current opinion | 7 |
| Thomas | |
| Total citations to dissents | 66 |
| In majority opinions | 22 |
| In concurring opinions | 14 |
| In opinions concurring in part/dissenting in part | 4 |
| In dissenting opinions | 26 |
| Total “sticky” citations | 10 |
| Dissenting justices most frequently cited: | |
| Thomas | 17 |
| Kavanaugh | 10 |
| Scalia | 7 |
| Roberts | 6 |
| Citations to dissent authored or joined by justice joining current opinion | 10 |
| Most Cited Justices | |
| Scalia | 24 |
| Thomas | 23 |
| Breyer | 16 |
| Kavanaugh | 15 |
| Sotomayor | 13 |
| Roberts | 10 |
| Gorsuch | 10 |
| Split | Total Cases | Cases Citing Dissents | # Dissent Citations |
| 9-0 | 16 | 5 | 14 |
| 8-1 | 12 | 9 | 25 |
| 7-2 | 5 | 4 | 24 |
| 6-3 | 19 | 17 | 130 |
| 5-4 | 10 | 5 | 8 |
| Opinion | Split | # of dissent citations |
|---|---|---|
| Wooden v. United States, 595 U.S. 360 (2022). | 9-0 | 2 |
| Shurtleff v. City of Boston, 596 U.S. 243 (2022). | 9-0 | 7 |
| American Hospital Ass’n v. Becerra, 596 U.S. 724 (2022). | 9-0 | 2 |
| Arizona v. City of San Francisco, 596 U.S. 763 (2022). | 9-0 | 1 |
| Ruan v. United States, 597 U.S. 450 (2022). | 9-0 | 2 |
| Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021). | 8-1 | 5 |
| Hemphill v. New York, 595 U.S. 140 (2022). | 8-1 | 1 |
| Cameron v. EMW Women’s Surgical Center, 595 U.S. 267 (2022). | 8-1 | 1 |
| Ramirez v. Collier, 595 U.S. 411 (2022). | 8-1 | 3 |
| Badgerow v. Walters, 596 U.S. 1 (2022). | 8-1 | 2 |
| United States v. Vaello Madero, 596 U.S. 159 (2022). | 8-1 | 4 |
| Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022). | 8-1 | 3 |
| Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022). | 8-1 | 2 |
| Berger v. North Carolina State Conference of the NAACP, 597 U.S. 179 (2022). | 8-1 | 4 |
| Gallardo ex rel. Vassalllo v. Marstiller, 596 U.S. 420 (2022). | 7-2 | 1 |
| United States v. Taylor, 596 U.S. 845 (2022). | 7-2 | 16 |
| United States v. Zubaydah, 595 U.S. 195 (2022). | 7-2 | 4 |
| Wisconsin Legislature v. Wisconsin Elections Commission, 595 U.S. 398 (2022). | 7-2 | 3 |
| National Federation of Independent Business v. OSHA, 595 U.S. 109 (2022). | 6-3 | 6 |
| Unicolors Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022). | 6-3 | 3 |
| United States v. Tsarnaev, 595 U.S. 302 (2022). | 6-3 | 5 |
| Thompson v. Clark, 596 U.S. 36 (2022). | 6-3 | 1 |
| City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. 61 (2022). | 6-3 | 9 |
| Brown v. Davenport, 596 U.S. 118 (2022). | 6-3 | 3 |
| Cummings v. Premier Rehab Keller, P L.L.C., 596 U.S. 212 (2022). | 6-3 | 1 |
| Shinn v. Ramirez, 596 U.S. 366 (2022). | 6-3 | 7 |
| Egbert v. Boule, 596 U.S. 482 (2022). | 6-3 | 7 |
| Garland v. Aleman Gonzalez, 596 U.S. 543 (2022). | 6-3 | 1 |
| Denezpi v. United States, 596 U.S. 591 (2022). | 6-3 | 1 |
| Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022). | 6-3 | 11 |
| New York State Rifle & Pistol Ass’n, v. Bruen, 597 U.S. 1 (2022). | 6-3 | 8 |
| Vega v. Tekoh, 597 U.S. 134 (2022). | 6-3 | 1 |
| Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). | 6-3 | 45 |
| Kennedy v. Bremerton School District, 597 U.S. 507 (2022). | 6-3 | 9 |
| West Virginia v. EPA, 597 U.S. 697 (2022). | 6-3 | 12 |
| Biden v. Missouri, 595 U.S. 87 (2022). | 5-4 | 1 |
| Nance v. Ward, 597 U.S. 159 (2022). | 5-4 | 1 |
| Torres v. Texas Department of Public Safety, 597 U.S. 580 (2022). | 5-4 | 1 |
| Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022). | 5-4 | 3 |
| Biden v. Texas, 597 U.S. 785 (2022). | 5-4 | 2 |
| Purpose | Number of Dissent Citations |
| Critiquing or advocating to overturn precedent | 85 |
| Cabining or characterizing precedent | 9 |
| “Warning” regarding impact of majority opinion | 12 |
| Illustrating disagreement among courts | 14 |
| Supporting a statement of public policy | 8 |
| Supporting a statement of legal principle | 55 |
| Invoking “personal precedent” of the author or another justice on the Court | 46 |
| Supporting a statement of legal rule | 17 |
| Supporting a “case illustration” for purposes of analogy | 0 |
| To identify the source of a direct quotation | 119 |
| Adopting a characterization of fact from a lower court opinion in the same matter | 6 |
| Some other purpose | 36 |