The Collegiality of Dissent

Abstract: The dominant view in the political science, economics, and legal literature is that ideology drives judicial decision-making. Yet another school of thought argues that this scholarship ignores the important role that judicial collegiality plays in judicial decision-making. The divide over collegiality extends to debate over which courts (or types of courts) are likely to be more collegial. Some argue that features of the Supreme Court make it more likely to function collegially than the courts of appeals. Others argue that features of the courts of appeals make those courts more likely to function collegially than the Supreme Court. A third area of contestation over collegiality is how exactly to measure collegiality. Some emphasize unanimity as the key manifestation of collegiality. However, judges may vote against their ideological preferences—and, specifically, choose to form majority blocs or to issue unanimous opinions—for reasons other than collegiality. Other commentators offer competing measures, but also lament that the concept of collegiality is “difficult to measure or model.” This Paper accepts the challenges of measuring the concept of collegiality. Returning to the emphasis of some commentators on “respect,” the measure asks whether dissenting judges treat the judges in the majority (and their opinions) with respect. The Paper uses this measure of collegiality to begin to shed light on the “comparative collegiality” of courts.