Dissents and Dissent Aversion
This chapter uses our model of judicial behavior to explore dissent in the Supreme Court and the courts of appeals, emphasizing what we have referred to in earlier chapters as "dissent aversion,"1
which sometimes causes a judge not to dissent even when he disagrees with the decision. Our data for the Supreme Court are all the Court's opinions in the 1963, 1980, and 1990 terms, with the exception of 5 cases decided by an equally divided vote and 11 cases in which there was no majority opinion. We chose those years to give us opinions in three different Chief Justiceships, those of Warren, Burger, and Rehnquist.
Our court of appeals data consist primarily of a random sample of 1025 published opinions (about 30 per circuit) in the 19891991 period, drawn from the Songer database. We selected that period so that we could obtain a nearly complete history of citations to each majority and dissenting opinion, since court of appeals opinions are rarely cited more than 20 years after they were decided.2
(The citation data are from Lexis and Westlaw searches.) We excluded 58 opinions because of the coding errors in the Songer database discussed in chapter 4, and 7 en banc decisions, which, however, we discuss separately. Our Songer sample unfortunately includes only 80 dissenting opinions, fewer than 8 percent of the decisions in the database. But we also draw on the Sunstein database, and that gives us another 422 such opinions.