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Neither purse nor sword: strategic minority opinions and judicial policy-making

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Neither purse nor sword: strategic minority opinions and judicial policy-making

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1

“Neither Purse nor Sword: Strategic Minority Opinions and Judicial
Policy-making”

Thora (Theodora) Giallouri

A dissertation submitted in fulfilment of the requirements
for the degree of Doctor of Philosophy
from the
POLITICAL SCIENCE & INTERNATIONAL RELATIONS
FACULTY OF
THE USC GRADUATE SCHOOL

August 2019

2
Acknowledgements

This thesis would never have been possible without the guidance and support of a remarkable
number of remarkable individuals; I can only hope they know how grateful I am for their scientific,
educational, mental, material, and emotional support. My deepest respect and gratitude go to my
advisor, Wayne A. Sandholtz, for supporting and being patient with the rather unconventional
advisee that I was. I could have not taken a single step towards the materialization of this project if
he had not believed in its merits. Many additional thanks go to my committee members, Profs. Abby
Wood and Jefferey Sellers who never hesitated to extend their thoughts and help throughout the
years it took to complete this dissertation.
I am deeply indebted to my friends and colleagues, Elli Menounou and Jordan Carr Peterson,
who sat with me for countless hours discussing, analyzing, experimenting, and enlightening me to
the various possibilities. Their help alone with pointing me to the direction of the numerous datasets
and governmental data employed in this dissertation was instrumental, not to mention everything
else.
To the administrative staff at the Department of Political Science at USC, Dr. Veri Chavarin,
Ms. Cathy Ballard, and Ms. Aurora Ramirez; without their help in all ways imaginable, no
dissertation could ever be completed. They are the backbone of the Department and the reason why
all graduate students love dropping by and distracting them from their work. Moreover, for the
immense moral support and “etho-plastic” conversations that sustained me during the PhD process,
I would like to thank Prof. Anthony Kammas at USC.
I am very grateful to the scholars who have kindly advised me on different and various parts of
this thesis, and, especially, Pierrette Hondagneu-Sotelo at USC. I will not name the scholars and
researchers with whom I did not communicate directly because that would make for a very long list,
but I believe the inspiration for true debate I derived from their seminal work is obvious throughout
these pages and I am very thankful for them making their work and data available to all.
Speaking of inspiration, this thesis is the manifestation of ideas and observations I came across
during the early years of the PhD. But the crucial step was taken some time before that; I would like
to extend my deepest thanks and admiration to the people who empowered me to pursue a
doctorate in the first place: Profs. Robert Bowman, Martin Adamian, and Michael McLendon at the
Department of Political Science at CSULA. Their pedagogical and research ethos allowed a young
student from Greece to not only make educational leaps but find her “calling” and make it a reality.
I can only hope to preserve and replicate that very same ethos.
Finally, while they are almost always last to get mentioned in the “acknowledgements”, it does
not detract from their true importance. To my parents, Sevasti and Nikolas Giallouris, and my
brother Skevos, I already owed a million good things, and now I owe them one more. I am eternally
grateful for lending me their never-ending love and support in every step of the way.

3

In memory of Skevos E. Giallouris
and his path-setting ethos.

4
TABLE OF CONTENTS

Acknowledgements ………………………………………………………………………… p. 2

Table of Contents ………………………………………………………………………… p. 4

Introduction ……………………………………………………………………….… p. 5
Bibliography …………………………………………………………………………. p. 13

Chapter 1: On the Behavioral and Institutional Characteristics of Strategic Minority Opinions.
1.1. Overview ………………………………………………………………………… p. 15
1.2. Modeling Minority Opinions ……………………………………………………... p. 17
1.3. A Theoretical Framework for Strategic Minority Opinions ……………………….. p. 24
1.4. Hypotheses ………………………………………………………………………. p. 27
1.5. Data and Methods ……………………………………………………………….. p. 30
1.6. Results ……………………………………………………………………………. p. 35
1.7. Discussion ……………………………………………………………………….. p. 39
1.8. Bibliography ……………………………………………………………………… p. 41
1.9. Appendix A: On the Behavioral and Institutional Characteristics of Strategic Minority
Opinions Tables and Figures ………………………………………………………….. p. 45
1.10. Appendix B: Alternative Models ………………………………………………… p. 49

Chapter 2: Judicialization and the Role of Political Context in Strategic Dissents and Concurrences.
2.1. The Case for Strategic Minority Opinions in a(n) (Un)Cooperative Environment … p. 53
2.2. Theoretical Overview ……………………………………………………………... p. 57
2.3. Hypotheses ……………………………………………………………………….. p. 63
2.4. Data and Methods ……………………………………………………………….... p. 69
2.5. Results ...................................................................................................................................... p. 74
2.6. Discussion ……………………………………………………………………….... p. 80
2.7. Bibliography ……………………………………………………………………….. p. 85
2.8. Main Model Tables ………………………………………………………………… p. 91
2.9. Appendix A ……………………………………………………………………...... p. 92
2.10. Appendix B ........................................................................................................................... p. 94

Chapter 3: Judicial Dialogue, Policy Change, and the Practice of Strategic Minority Opinions.
3.1. Introduction ……………………………………………………………………. p. 95
3.2. “Careful with that Minority Opinion, Justice”: The Case of South Dakota v. Wayfair p. 96
3.3. Addressing policy needs through strategic minority opinions ……………………. p. 100
3.4. Hypotheses ……………………………………………………………………... p. 104
3.5. Data, Methods, and Measurements ……………………………………………... p. 107
3.6. Results ………………………………………………………………………….. p. 113
3.7. Discussion ………………………………………………………………………. p. 116
3.8. Bibliography ……………………………………………………………………. p. 121
3.9. Appendix: Tables and Figures …………………………………………………... p. 125

Conclusion ………………………………………………………………………………. p. 129
Bibliography ………………………………………………………………………… p. 136

5
Introduction
In November 2015, on the front page of the New York Times, the Politics section on the side
column announced: “Death Penalty Foes Split Over Taking Issue to Supreme Court”. The reportage
further featured
1
that “in a passionate dissent in June, Justice Stephen G. Breyer invited a major
challenge to the constitutionality of capital punishment… Justice Breyer has told friends that his
dissent was partly inspired by a similar one a half-century before. The earlier dissent, by Justice
Arthur J. Goldberg, helped create the modern movement for the abolition of the death penalty and
led to a four-year moratorium on executions.” The article’s further research pinpoints that the
inspiring 1963 dissent in Rudolph v. Alabama, was drafted by a law clerk, Alan M. Dershowitz, who
went on to become a Harvard law professor and litigator.
“Collecting data on national and international practice, Justice Goldberg’s dissent urged the court
to hear a case on whether the death penalty for rape violated the Eighth Amendment’s ban on cruel
and unusual punishment. The goal was to ask litigators to start raising challenges to the death
penalty,” Professor Dershowitz said. “It was an invitation to litigation. It was not a common
tactic back then, and we were much criticized for it… Justice Breyer would not have written this
dissent if he did not think this was a good time to bring cases to the attention of the court. Now
it’s up to litigants to figure out the right case.”
2

What motivates Supreme Court justices to issue minority opinions? Are all minority opinions
similar in type, function, or quality? What do minority opinions achieve, if anything? Are they
essentially a product of the least dangerous branch in the U.S. political landscape or do they reflect
and interact with the institutional context? In the course of time, what is the contribution of this
judicial practice to legal discourse specifically, and the political dialogue broadly? This thesis answers
the above questions and sheds light to a common, yet understudied practice; a practice that aims at
expanding communication among actors and provides various types of recourse to those who
navigate the federal court system.

1
Adam Liptak, New York Times, A1, November 4th, 2015.
2
Alan Dershowitz in interview with Adam Liptak.

6
There have been some important contributions to our general knowledge of when and why
minority opinions are authored, as well as who authors them. The practice of authoring a minority
opinion, to begin with, gained popularity with the shift in the institution itself. Change in the
leadership of the Court brought the dissolution of consensual norms as these had been established
in the past (Walker et al. 1988), with the number of dissenting opinions embarking on a significant
upwards journey during Chief Justice Hughes’ leadership
3
, and concurring opinions following a
similar trend under the Stone era (Haynie 1992). Caldeira and Zorn (1998) on the other hand, posit
that concurrences and dissents follow the same upwards and downwards trends over time reflecting
the membership of and collegiality on the land’s highest court. Changes in the makeup of the Court
are also the main reason for the rise in minority opinions according to O’Brien (1999), but in this
case, it was the New Deal justices who pursued different tenets of judicial liberalism that ushered in
a new way of deciding cases (p. 103). Following the logic of regime change, Smyth et al. (2006) claim
that there have been three distinct shifts in the consensual tactics of the Court, but the actual points
in time differ for dissenting and concurring opinions, contradicting the previously held idea that
both types of minority opinion follow similar trends simultaneously. Additionally, on the function of
minority opinions, Sunstein (2003) argues that the potential of dissent reduces the likelihood of an
incorrect or lawless majority opinion, which argument has often been made by the justices
themselves in various accounts.
4

More empirically grounded studies shift their focus on the function of minority opinions and
argue that dissents for example, act as signals from judges to litigants on how to frame future similar

3
Indeed, two years before Charles Evans Hughes became Chief Justice opined that “…unanimity, which is
merely formal, which is recorded at the expense of strong conflicting views, is not desirable in a court of last
resort, whatever may be the effect upon public opinion at the time. That is so because what must ultimately
sustain the court in public confidence is the character and independence of the judges”. (Hughes 1928, p. 68).
4
See, for example: Ruth Bader Ginsburg, 2008. “Dissent is an Appeal for the Future”, Alaska Bar Rag, Vol.
32, Issue 2.

7
cases so as to increase the chance of success for the argument the dissenting judge supports (Baird
and Jacobi 2009). Hinkle and Nelson (2017) argue that dissenting opinions framed in memorable
(negative) language, are more likely to be cited in majority opinions, which offers a partial
explanation of why justices on the Supreme Court forgo collegiality by crafting powerful dissenting
opinions. Of course, other research claims forceful language is either harmful (Urofsky 2015) or
inconsequential (Chemerinsky 2000) with regards to majority aspirations, but generally on the topic
of signaling, Turner et al. (2010) and Maveety et al. (2010) present a broad range of goals that
minority opinions may wish to achieve, from instructing future litigants as to what types of cases to
bring to making recommendations to colleagues and legislatures. On minority opinions’ effects on
precedent, it has been written that depending on the types of concurring opinion, they may
positively affect the upholding the precedent they set or work towards overruling it (Collins 2004,
Corley 2010).
When shifting the examination of minority opinions towards their function, the general
consensus is that judges are rational actors and authoring minority opinions is not simply an exercise
in expressing their clear preferences (Epstein and Knight 1998). Minority opinions are written with
an eye to the future; their authors engage in potential judicial policy-making by shaping future
litigation or convincing political power-holders to take specific action to solve problems and address
policy dilemmas. Scholars of judicial politics keep reminding students that courts in the United
States are not a panacea or even a wise option for solving policy issues at times (Rosenberg 1991).
Courts possess no power of decisional implementation, and the power they do enjoy is dependent
upon the legitimacy afforded to them by the populace and other branches of government (Gibson et
al. 1998, 2005), as it was originally intended. We are regularly reminded that they possess neither the
power of the purse, nor the power of the sword. What they do possess is authority and the power of
persuasion and sometimes this type of power is exercised through means that pass under the radar

8
or at least, conveyed in ways that we do not outright recognize as such. One such vehicle for
configuring policy in the form of legal argumentation are not minority opinions, in general, but
strategic minority opinions; a concept that this thesis introduces towards the study of judicial
behavior and institutions, and tests for various implications.
Strategic minority opinions, compared to non-strategic, offer tools for future policy change
even when their author is found on the losing side of an argument; tools that have not been
considered and rejected by a given majority and which invite the courts’ various audiences into a
dialogue that seeks and enables future legal change. The title of this thesis reflects this delicate
balance between temporal/institutional powerlessness, and the potential to affect future legal
discourse and tangible policy change via purely judicial means. Specifically, the idea that despite
being constrained in their ability to influence policy, courts and judges still possess some methods
with which they can overcome this and engage in judicial policy-making, defying the -justifiably-
level-headed accounts of the judiciary’s ancillary status. This thesis poses an affirmation to the idea
that the language of the law matters; but with a twist. Legal language matters as long as it is visible
and supportive to the goals of others; as long as it has the ability to initiate dialogue, add to, and
change the discourse; and as long as it enables the courts’ audiences to address dilemmas and find
solutions to problems that other institutions are not resolving.
Specifically, strategic dissents are minority opinions which contain signals that target either the
losing side's attorneys and litigants, legislators, the executive branch, the public, or a combination of
these. Strategic concurring opinions are similarly constructed, in the sense that they are carriers of a
signal but target the winning side of an argument in more ways than the majority opinion afforded
redress of the issue at stake. Concurring opinions may side with the prevalent decision, but do not
pose formal doctrine; they introduce a different reasoning or way of thinking about a specific
problem and its solution, yet, agree with the overall outcome of the majority opinion. Strategic

9
concurrences seek to expand such results and solutions by offering further argumentation based on
which a litigant could achieve similar victory if a future case was brought before the court. The
signal in both strategic dissents and concurrences suggests that the court in question could reach a
more favorable decision for those left outside the “winners’ circle” if that side were to bring a
different type of legal argument covering similar facts, or that the court could reach a more
expansive and fortifying decision for the winners, or that some other governmental agents are more
appropriate to resolve the conflict. These minority opinions become strategic not only because they
contain, in the form of suggestion, previously unaddressed reasoning that could garner larger
support from the bench under different configurations, but because they incite dialogue between
and among the different political and judicial agents and draw social and political actors into a
“dynamic jurisgenerative”
5
arena by furthering litigation.
It is these instances precisely that grab the attention of researchers, observers, and followers of
the courts, and most prominently the U.S. Supreme Court. While theoretically and practically any
court that convenes in the form of multi-member panels can engage in policy-making strategy, the
focus of this study lies with the U.S. Supreme Court as the locus for the majority of transpiring
doctrinal and policy change. While instances of strategically concurring or dissenting in lower courts
are not peculiar, the heavy caseload and fact-finding intensive litigation that takes place in lower
courts, along with the deference to Supreme Court stare decisis, does not leave much room for
innovative opinion writing. The project seeks to explain what factors promulgate this practice and
what effects it may have for recipients of the signals. To carry this out, I constructed a novel
database containing all minority opinions issued by Supreme Court justices during the 1980-2010
terms, totaling 4752 dissents and concurrences. I also employed content analysis so as to categorize

5
The phrase comes from Benhabib (2009) and Stone Sweet (2002). The authors discuss how courts persuade
on the basis of reason, while they carry out their policy-making capacity in a way that is dynamic and
engaging of other actors.

10
them as strategic or non-strategic, created various other measurements, and borrowed well-known
concepts from scholars. Methodologically, I test expectations based on statistical analysis and
conduct qualitative interviews with attorneys and federal court law clerks so as to solidify the logic of
these hypotheses or reveal unobserved/unknown processes. Moreover, I present two case-studies to
exemplify the inner and outer workings of the concepts I introduce and analyze in this dissertation;
one of a strategic dissent addressing a political branch (Boyle v. United Technologies Corp., 487 U.S. 500,
1988), and one of a strategic concurrence addressing litigants (South Dakota v. Wayfair, Inc., 138 S. Ct.
2080, 2018). In this vein, the dissertation is structured around three chapters.
Chapter 1 defines the concept and what the practice of strategic minority opinions entails and
explores possible explanations regarding who is more likely and which reasons may propel someone
into this form of strategizing. The chapter situates the practice within the rational choice model of
judicial behavior and reveals new ways with which justices on the U.S. Supreme Court may balance
their preferences with exigencies of their immediate environment. Findings in this chapter show a
connection between strategic minority opinions on one end, and non-moderate ideological
tendencies and judicial activist perspectives on the other, because, as theorized, these two behavioral
categories are more willing to sustain the costs of strategic concurring and dissenting. Offsetting
these costs, this chapter also finds that justices strategically dissent and concur more when they are
ideologically further away from the majority opinion author. It is also revealed that specific intra-
institutional factors affect the choice to author a strategic minority opinion; caseload dampens this
practice, but the existence of strategic opinion in a given case increases the probability for more
opinions of the same nature in the same case because in that instance it signals that justices are not
willing to forgo their ability for sua sponte consideration of questions and solutions. The
phenomenon of authoring strategic minority opinions further reveals its connection to the

11
institution in which it is practiced via the influence of justices’ tenure length and the range of
possibilities for action that vague doctrine allows them.
Chapter 2 takes on an interbranch approach and shows that strategic minority opinions are not
merely the product of a justice’s personal policy or other preferences, but are born out of the
institutional environment surrounding the justice. Building on the theory of judicialization, i.e. the
theory that explains how specific conditions in the elected branches and sociolegal design
promulgate the resolution of political disputes in courts rather than legislative chambers, strategic
minority opinions are shown to be bolstered by highly judicialized environments, while there is some
indication that they promote further litigation themselves. Specifically, this chapter reveals that
justices tend to author strategic minority opinions when the Senate and executive branch move
ideologically further away from them in an effort to incite more preferable action, when the law
reviewed is declared vague, when one of the litigant parties is governmental, and when the executive
is one that favors private enforcement regimes over generalized legislative solutions. On the other
hand, justices dissent and concur strategically with less frequency when both congressional chambers
are carried by the same party, when Supreme and Circuit Court caseloads increase, and when laws
are lengthier and therefore more detailed.
Finally, Chapter 3 offers an answer with regards to the generally theorized aspired effect of
minority opinions. It builds upon the elements of Triadic Dispute Resolution, such as the evolution
and promotion of judicial communication among justices and their various audiences as a method of
error correction, and pairing it with the rational choice model of judicial behavior, to show that
strategic minority opinions are indeed a tool that justices possess towards enacting legal and policy
change. The questions explored ask what happens after a justice authors a strategic concurrence or
dissent; whether their strategy is visible by litigants, and if visible, whether it is successful compared
to arguments that have already been considered by the Court in order to promote legal change. The

12
answer proffered by the findings pose a robust affirmation to the value of strategic minority
opinions as a tool for legal and, in its heart, policy change. Strategic minority opinions are found
more likely to be used by litigants, they are more often repeated by their authors themselves and
their colleagues and, most importantly, they lead to higher rates of adoption into majority reasoning
than non-strategic ones.
This dissertation theorizes a novel concept by setting specific standards for it and expands on
the strategic model of judicial behavior by revealing previously unaccounted for practices that
support rational choice accounts in the context of courts and judicial politics. Responding to the
often-posed question “what makes some minority opinions more consequential than others?”, this
study offers an answer. The significance of the project, therefore, lies in its contribution towards a
sparsely researched phenomenon, despite the tangible social and political effects this practice has
due to the centrality of the U.S. adversarial legal system in providing dispute resolution for
sociopolitical issues, as well as it occupying a space for policy change during the current trend of
judicializing political demands. In addition, it adds to our understanding of the various methods and
tools courts possess that influence the cycle of conflict resolution and correction of political failures
(Shapiro 1981).
To the best of the author’s knowledge, this is also the first study to systematically research the
relationship between strategic minority opinions (and of minority opinions in general) on the U.S.
Supreme Court and the inter-institutional context that surrounds them. It is the first to present
evidence showing that a practice thought of as highly doctrinal and contained within the judiciary is
hardly isolated from its political environment; and finally it empirically contributes to our
understanding of the multitude of ways through which courts can engage in policy-making and
effect legal change, circumventing the predicament of having neither purse nor sword.

13
Bibliography

Baird, Vanessa and Tonja Jacobi. 2009. “How the Dissent Becomes Majority: Using Federalism to
Transform Coalitions in the U.S. Supreme Court”. Duke Law Journal. Vol. 59, No. 2, pp. 183-
238.

Benhabib, Seyla. 2009. “Claiming Rights across Borders: International Human Rights and
Democratic Sovereignty”. American Political Science Review, Vol. 103, No. 4, 691-704.

Caldeira, Gregory and Christopher Zorn. 1998. “Of Time and Consensual Norms in the Supreme
Court”. American Journal of Political Science, Vol. 42: pp. 874– 902.

Chemerinsky, Erwin. 2002. Constitutional Law Principles and Policies, Aspen Publishers.

Collins, Paul. 2004. “Variable Voting Behavior on the Supreme Court: A Preliminary Analysis and
Research Framework”, Justice System Journal, 25:1, pp. 57-74.

Corley, Pamela. 2010. Concurring Opinion Writing on the U.S. Supreme Court. State University of New
York Press.

Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press.

Gibson, James, Gregory Caldeira, and Lester Kenyatta Spence. 2005. “Why Do People Accept
Public Policies They Oppose? Testing Legitimacy Theory with a Survey-Based
Experiment. Political Research Quarterly, Vol. 58, No. 2, pp. 187-201.

Gibson, James, Gregory Caldeira, and Vanessa Baird. 1998. “On the Legitimacy of National High
Courts.” The American Political Science Review Vol. 92, No. 2, pp. 343–358.

Haynie, Stacia. 1992. “Leadership and Consensus on the U.S. Supreme Court.” Journal of Politics, Vol.
54, No. 4, pp. 1158–1169.

Hinkle, Rachael and Michael Nelson. 2017. “How to Lose Cases and Influence People”. Statistics,
Politics and Policy, Vol. 8, No. 2, pp. 195-221.

Hughes, Charles Evans. 1928 (1936). The Supreme Court of the United States; Its Foundation, Methods and
Achievements, an Interpretation. New York: Columbia University Press.

Liptak, Adam. The New York Times, 11/3/2015. “Death Penalty Foes Split Over Taking Issue to
Supreme Court”.

Maveety, Nancy, Charles C. Turner, and Lori Beth Way. 2010. “The Rise of the Choral Court: Use
of Concurrence in the Burger and Rehnquist Courts”. Political Research Quarterly, Vol. 63, No. 3,
pp. 627-639.

Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University
of Chicago Press.

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O’Brien, David. 1999. “Institutional norms and Supreme Court Opinions: On Reconsidering the
Rise of Individual Opinions”. In Supreme Court Decision-making: New Institutionalist Approaches, eds.
Cornell W. Clayton and Howard Gillman. Chicago: Chicago University Press.

Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. University of Chicago Press.

Shapiro, Martin and Alec Stone Sweet. 2002. On Law, Politics, and Judicialization. Oxford; New York:
Oxford University Press.

Smyth, Russell and Paresh Kumar Narayan. 2006. “Multiple Regime Shifts in Concurring and
Dissenting Opinions on the U.S. Supreme Court.” Journal of Empirical Legal Studies, Vol. 3, No. 1,
pp. 79–98.

Sunstein, Cass. 2003. Why Societies Need Dissent. Boston, MA: Harvard University Press.

Turner, Charles, Lori Beth Way, and Nancy Maveety. 2010. "Beginning to Write Separately: The
Origins and Development of Concurring Judicial Opinions." Journal of Supreme Court History,
Vol. 35, No. 2, pp. 93-109.

Urofsky, Melvin. 2015. Dissent and the Supreme Court: Its Role in the Court's History and the Nation's
Constitutional Dialogue. New York: Pantheon Books.

Walker, Thomas, Lee Epstein, and William Dixon. 1988. “On the Mysterious Demise of Consensual
Norms in the United States Supreme Court”. Journal of Politics, Vol. 50, No. 2, pp. 361-389.

15
Chapter 1.
On the Behavioral and Institutional Characteristics of Strategic Minority Opinions.

1.1. Overview
The popular press during the 2010s afforded significant coverage to the minority opinions
accompanying majority opinions issued by the U.S. Supreme Court and the debates these sparked.
6

“Sonia Sotomayor Delivers Sharp Dissent in Travel Ban Case”
7
is the title of a breaking-news article,
publicized seconds after a different article covering the majority opinion of the same Supreme Court
case decided, and shared thousands of times on social media platforms. “Once Again, Justice Breyer
Presses Case Against Death Penalty”
8
is another example among many of the popularization of
minority opinions as a topic of discussion for the average news consumer. While it could be argued
that the rising salience of minority opinions reflects the increasing political polarization in the elected
and non-elected branches, interest in dissenting and concurring opinions is not something new.
Within the discussion and analysis that follows the publication of Supreme Court opinions
each term, some concurring and dissenting opinions tend to receive special mention both from the
general public, as well as academic-legal circles. Often, such discussions abound with proclamations
of how “powerful”, “cautionary”, or “prophetic” these minority opinions are, while it does not
come as much of a surprise when the logic of some of these opinions at a later time becomes the
norm through legislation or litigation. Justice Ginsburg's dissent in Burwell v. Hobby Lobby Stores, 134
S. Ct. 2751 (2014) garnered equal attention
9
to the actual Court opinion by highlighting the majority
opinion's misconstruction of corporations as persons within the Religious Freedom Restoration Act

6
In the past decade, minority opinions each term number roughly the same as majority opinions, with an
average of 1.1 minority opinions per case decided, see StatPack Archive at SCOTUSBlog.
7
NY Times, June 26
th
, 2018, A17.
8
NY Times, December 12
th
, 2016, A13.
9
Justice Ginsburg dissent swept through the mainstream and social media, instantly sparking a campaign by
Planned Parenthood protesting the majority ruling. See Eversley, Lauren. 2016. “#JOINTHEDISSENT:
Ruth Bader Ginsburg and the Hobby Lobby Effect”. Albany Law Review, 79(1), pp. 269-95.

16
and calling on Congress and the federal government to weigh in through amendment or clarification
of the pertinent Act. Similarly, Justice O'Connor's concurrence in Lawrence v. Texas, 539 U.S. 558
(2003), suggesting that same-sex relationships should be afforded protections based on the Equal
Protection Clause of the Fourteenth Amendment was considered pioneering by much of the public
and vindicated its “consequential” characterization when it became the prevalent doctrine in the
2015 case of Obergefell v. Hodges, 135 S. Ct. 2584. Indeed, a closer look reveals a myriad of minority
opinions which became more famous than their respective majority ones and shaped American law
for generations to come (Urofsky 2015).
It would be precarious, however, to label the transformation of some of these minority
opinions into prevailing doctrine as accidental or simply fortuitous for the advocates of a particular
issue. While it is well understood that most concurring and dissenting opinions are authored with
the aspiration of becoming prevalent doctrine, it is not clear why only some minority opinions
possess such potential and how this process of transformation can come about. This study focuses
on the novel concept of strategic minority opinions and situates this phenomenon within the theory
of strategic behavior, in order to elucidate the practice and function of an otherwise understudied
judicial tool. I show that a type of minority opinion that meets specific characteristics and standards
is transformed into a vehicle for potential judicial policy-making, thereby proposing an answer to the
question of why some minority opinions are more consequential than others. I theorize that this
type of minority opinion forms a strategic choice judges make and not simply a moving diatribe by
judges found on the losing side of a legal argument. Finally, I explore in a systematic way the
behavioral characteristics of those who engage in the practice of authoring strategic minority
opinions, thereby expanding the strategic model of judicial behavior and adding to the literature of
minority opinions in general.

17
Covering the total universe of minority opinions issued by U.S. Supreme Court justices during
the terms 1980-2010 (4,753 concurrences and dissents in total), I show that judicial policy-making,
or at least the tendency for judicial policy-making, is not limited to authoring majority opinions, and
that the justices’ own, as well as their colleagues’, personal characteristics and preferences along with
intra-institutional considerations greatly affect the decision to dissent or concur strategically.

1.2. Modeling Minority Opinions
A multitude of scholars claim that minority opinions are important because, via their aspiration
to become majority opinions, they shape the law and elevate the Supreme Court into the forefront
of policy-making. Therefore, the study of minority opinions enriches our understanding of judicial
behavior on one hand and how policy change comes about on the other. But how exactly do
minority opinions do this? Are all concurrences and dissents so consequential? If so, then why do
we not observe minority opinions transforming into doctrine with practically every issue and case
the Court addresses each term?
The important work of Baird and Jacobi (2009), upon which this study builds, is featured
among some of the few systematic studies of minority opinions and shows that dissents act as
signals from judges to litigants on how to frame future similar cases so as to increase the chance of
success for the argument the dissenting judge supports. The authors provide evidence that show
how U.S. Supreme Court justices set the Court's agenda through the use of signaling opinions;
specifically, through the reframing of arguments belonging in various areas of law into federalism
issues.
Schmidt and Shapiro (2010-2011) categorize dissenting opinions on the basis of what purpose
they serve; acting as a plea directed to the public or other branches or reflecting interpersonal
tensions within the issuing court, while Way and Turner (2006) reveal four different functions of

18
concurring opinions; ground-laying, preserving, signaling, and weakening. A crucial aspect of this
study is found in the ground-laying concurrences, where the author “declares an interpretative
difference with the majority and often presents an alternative strategy for deciding such cases;
authors may agree with the area of the law discussed, but disagree with the Court’s interpretation,
they may think that the majority is using the wrong legal text or that they are incorrect regarding the
section of the Constitution or relevant statute applied (p. 296).” Turner et al. (2010) and Maveety et
al. (2010) expand on concurring opinions’ signaling function, which “speculate on how the Justice
might decide future cases; indicate to future litigants what types of cases to bring (or not bring) or
arguments to make (or not make); go out of the way to discuss issues not in contention; make
recommendations to legislatures; make recommendations to parties or courts in a remand” (p. 101),
thereby establishing significant differences in the goals set by minority-authoring justices.
Similarly, Corley (2010) argues that since different concurring opinions pursue different goals,
either weakening or bolstering the majority opinion, the signals they send have an impact for
Supreme Court doctrine. Specifically, she finds that those concurring opinions which expand on the
reasons for the correctness of the majority opinion positively affect the upholding of precedent they
set and are greater acknowledged by lower appellate courts, while narrowing concurring opinions
have the opposite effect for both precedent and compliance by Circuit courts. In this vein, Collins
(2004) finds that Supreme Court Justices who author concurrences are more likely to vote for
overruling the precedent that case set in the future. On the other hand, Spriggs and Hansford, who
chose not to separate concurring opinions based on the purpose they serve, but used the number of
special concurrences only, found that no relationship seems to exist between concurrences and
lower court precedent treatment in one study (2006), and in another that as the number of
concurrences increased, precedent was not as likely to be upheld by the Supreme Court (2001),

19
which is partially contradictory with other studies’ findings and could be explained due to relative
lack of nuance in their independent variables.
Finally, studies on signaling argue that dissenting opinions are a judge's last chance to influence
what has just been agreed upon by other members, through the setting in motion of the cogs of the
legal system (Lopeman 1999, Wrightsman 2006) and inciting dialogue with the political system or
society. Specifically, on the dialogue between courts, dissents in the 3-member panels of the federal
circuits are used as a signaling tactic by judges to trigger review by the U.S. Supreme Court (Black
and Owens 2009, Black et al. 2016, Caldeira et al. 1999) or provoke congressional scrutiny of the
issue in question (Eskridge 1991).
If the aforementioned studies agree on one thing, that centers around the importance of some
minority opinions towards affecting the future of the law and the possible characteristics these may
possess. What they do not do, however, is establish specific criteria about which types of minority
opinions are linked to agenda-setting and policy-making, and how this practice relates to judicial
behavior. This chapter introduces the concept of strategic minority opinions and argues that, despite
the institutional constraints they face, judges can advance their preferences and engage in legal
change and judicial policy-making through this particular judicial practice.
Strategic minority opinions are concurrences and dissents that offer a previously not
considered but reasoned guide to future litigation or that incite specific action in the elected
branches, while possessing a clear recipient for their message. What previous studies have left out is
this crucial differentiating characteristic among minority opinions, regardless of whether they are
concurrences or dissents; that some offer a concrete basis or path to future argumentation which has
not been dealt with by the majority opinion coalition. It is therefore, not simply a signaling tactic
from the part of judges that a particular outcome could and would be desirable in the future, or that
perhaps a winning coalition could be formed over a currently not so popular interpretation of

20
doctrine, or that the Court would be open to hearing an additional question to the one before it, but
a solid, previously unaddressed strategy for the future. Authors of these types of concurrences and
dissents engage in discussion of different interpretations, tests, areas of law, or caselaw, make these
signals discernible through use of the aforementioned language, and bring forth points which have
not been addressed by the majority, meaning they have not already been discussed and rejected.
From various procedural accounts, it is known that justices on the Supreme Court circulate drafts of
their opinions and make changes and adjustments so as to convince their colleagues to join; in other
words, there is an intense bargaining period before every decision (Baum 2008, Corley 2010, Epstein
and Knight 1998, Maltzman et al. 2000, Urofsky 2015, and others) where justices have to weigh their
doctrinal and policy preferences with those of their colleagues. Quite often the objections raised by
minority opinions are addressed and dealt with (in a persuasive or not manner) by the majority
opinion author, but there is a crucial remainder of argumentation in minority opinions that goes
undiscussed. The strategic element of these opinions lies not only on the different means offered so
as to achieve a desirable end, but in the novelty of these arguments, which unaddressed, pose a
serious issue to contend with in future litigation or by appealing to political power holders. The fact
that these ideas have not yet been tried and rejected makes them a potential winning strategy, while
the author of the strategic minority opinion manages to broaden the dialogue among judges and
between judges and the public, work towards changing the legal discourse, and provide tools for
legal change, i.e. the author increases her potential for judicial policy-making, while at the same time
respecting the rules of the collegial game and acknowledging the limitations of this tactic due to
institutional constraints. This type of minority opinion is not simply about expressing the justice’s
clear preferences but is written with an eye to the future (Epstein and Knight 1998). What I do in
this chapter is codify that strategy and set strict rules for it, which revolve around introducing a solid
path for argumentation; not abstract recommendations or based on emotive language, but concrete

21
litigation strategy from the hands of the decision-makers themselves. Conversely, a non-strategic
minority opinion does not offer a new path to litigation; it may be fact-intensive, it may contain little
argumentation, or it may extensively challenge the reasoning that the majority opinion laid out, but it
does not advance a dialogue between justices themselves and their audiences or make
recommendations that have not been made during the same debate, which means it leaves litigants
with little or nothing to use to move on from that point forward.
An example of a strategic dissent appealing to litigants and colleagues can be found in Roe v.
Flores-Ortega, 528 U.S. 470 (2000), where Justice Souter introduces, unaddressed by the majority,
arguments and advocates for the ABA standards to be applied in cases of effective assistance of
counsel, as they better fulfill the reasonable assistance standard of Strickland and goes on to provide
the specific rules that should govern the case:
“To the extent that our attention has been directed to statements of "prevailing
professional norms," Strickland v. Washington, 466 U.S. at 688, they are consistent with
common sense in requiring a lawyer to consult with a client before the client makes
his decision about appeal. Thus, ABA Standards for Criminal Justice 21-2.2(b) (2d
ed. 1980):
"Defense counsel should advise a defendant on the meaning of the court's judgment,
of defendant's right to appeal, on the possible grounds for appeal, and of the probable
outcome of appealing. Counsel should also advise of any post-trial proceedings that
might be pursued before or concurrent with an appeal. While counsel should do what
is needed to inform and advise defendant, the decision whether to appeal, like the
decision whether to plead guilty, must be the defendant's own choice…"
While Strickland's disclaimer that no particular set of rules should be treated as
dispositive respects the need to defer to reasonable "strategic choices" by lawyers, 466
U.S. at 690, no such strategic concerns arise in this case. Strategic choices are made
about the extent of investigation, the risks of a defense requiring defendant's testimony
and exposure to cross-examination, the possibility that placing personal background
information before a jury will backfire, and so on. It is not, however, an issue of
"strategy" to decide whether or not to give a defendant any advice before he
loses the chance to appeal a conviction or sentence…”

In the excerpt from the Flores opinion, the specific rules that should guide the Court’s
judgement according to the author are in bold, are nowhere featured in the majority opinion, and the

22
target of this proposal from the text of the opinion addresses colleagues of the same and lower
courts. In the same case appears a second dissenting opinion, which supports and clarifies the
desirable strategy even further. Justice Ginsburg adds:
“This case presents the question whether, after a defendant pleads guilty or is
convicted, the Sixth Amendment permits defense counsel simply to walk away, leaving
the defendant uncounseled about his appeal rights. The Court is not deeply divided on
this question. Both the Court and Justice Souter effectively respond: hardly ever.
Because the test articulated by Justice Souter provides clearer guidance to lower courts
and to counsel, and because I think it plain that the duty to consult was not satisfied
in this case, I join Justice Souter’s opinion.”

A strategic minority opinion can also make appeals to other governmental branches by laying
down with precision what it is that the other branch should do for the issue before the Court to be
resolved, since it is not in the Court’s (or judge’s) hands anymore or should not be in the Court’s
hands to begin with. Justice Brennan, joined by three others in dissent in Boyle v. United Techs. Corp.,
487 U.S. 500 (1988), lambasts both his colleagues for “creating” laws that do not exist and Congress
for not specifying in the Federal Tort Claims Act what the status of private contractors with the
federal government is regarding sovereign immunity from tort claims:
“Even granting the Court's factual premise, which is by no means self-evident, the
Court cites no authority for the proposition that burdens imposed on Government
contractors, but passed on to the Government, burden the Government in a way that
justifies extension of its immunity. However substantial such indirect burdens may be,
we have held in other contexts that they are legally irrelevant. See, e. g., South
Carolina v. Baker, 485 U.S. 505, 521 (1988). Moreover, the statutory basis on which
the Court's rule of federal common law totters is more unstable than any we have ever
adopted. In the first place, we rejected an analytically similar attempt to construct
federal common law out of the FTCA when we held that the Government's waiver of
sovereign immunity for the torts of its employees does not give the Government an
implied right of indemnity from them, even though the "[t]he financial burden placed
on the United States by the Tort Claims Act [could conceivably be] so great that
government employees should be required to carry part of the burden." United States
v. Gilman, 347 U.S. 507, 510 (1954). So too here, the FTCA's retention of sovereign
immunity for the Government's discretionary acts does not imply a defense for the
benefit of contractors who participate in those acts, even though they might pass on
the financial burden to the United States.
Perhaps tort liability is an inefficient means of ensuring the quality of design efforts,
but "whatever the merits of the policy" the Court wishes to implement, "its conversion

23
into law is a proper subject for congressional action, not for any creative power of
ours." Standard Oil, 332 U.S., at 314-315. It is, after all, "Congress, not this Court or
the other federal courts, [that] is the custodian of the national purse. By the same token
Congress is the primary and most often the exclusive arbiter of federal fiscal affairs…
If Congress shared the Court's assumptions and conclusion it could readily enact "A
BILL to place limitations on the civil liability of government contractors to ensure that
such liability does not impede the ability of the United States to procure necessary
goods and services," H. R. 4765, 99th Cong., 2d Sess. (1986); see also S. 2441, 99th
Cong., 2d Sess. (1986). It has not. Were I a legislator, I would probably vote against
any law absolving multibillion dollar private enterprises from answering for their tragic
mistakes, at least if that law were justified by no more than the unsupported
speculation that their liability might ultimately burden the United States Treasury.”

Finally, the language of a strategic concurrence does not differ much from a strategic dissent,
since the two types share the same goal of providing not only a signal to recipients for judicial
preference but delineating a course of action too. Justice Scalia in Ricci v. DeStefano, 557 U.S. 557
(2009), a case where a local government agency attempted to prevent disparate discrimination under
Title VII of the Civil Rights Act of 1964 by nullifying promotion exams where white contenders
scored higher compared to minority ones, agreed with the Court’s reasoning and judgement, but
thought that Title VII would soon need to be reconsidered in terms of equal protection and offered
multiple scenarios, albeit all concluding that the statute would not fare well in the future. In three
short paragraphs, Justice Scalia not only openly invites discussion on Title VII’s constitutionality, but
outlines three reasons, along with relevant supportive caselaw, based on which litigants could attack
Title VII for violating the Equal Protection Clause, which in this case was a question explicitly left
unaddressed by the majority opinion.
First, J. Scalia invites litigants to challenge the constitutionality of Title VII: “As the
facts of these cases illustrate, Title VII's disparate-impact provisions place a racial
thumb on the scales, often requiring employers to evaluate the racial outcomes of their
policies, and to make decisions based on (because of) those racial outcomes. That type
of racial decision-making is, as the Court explains, discriminatory. See ante, at 578-579,
174 L. Ed. 2d, at 506; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.
Ct. 2282, 60 L. Ed. 2d 870 (1979).”

24
Then, he offers examples as to how it discriminates: “To be sure, the disparate-impact
laws do not mandate imposition of quotas, but it is not clear why that should provide
a safe harbor. Would a private employer not be guilty of unlawful discrimination if he
refrained from establishing a racial hiring quota but intentionally designed his hiring
practices to achieve the same end? Surely he would. Intentional discrimination is still
occurring, just one step up the chain. Government compulsion of such design would
therefore seemingly violate equal protection principles. Nor would it matter that Title
VII requires consideration of race on a wholesale, rather than retail, level. "[T]he
Government must treat citizens as individuals, not as simply components of a racial,
religious, sexual or national class." Miller v. Johnson, 515 U.S. 900, 911, 115 S. Ct. 2475,
132 L. Ed. 2d 762 (1995). And of course, the purportedly benign motive for the
disparate-impact provisions cannot save the statute. See Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 227, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995).”
Finally, he addresses potential counter-arguments: “It might be possible to defend the
law by framing it as simply an evidentiary tool used to identify genuine, intentional
discrimination--to "smoke out," as it were, disparate treatment. See Primus, supra, at
498-499, 520-521. Disparate impact is sometimes (though not always, see Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S. Ct. 2777, 101 L. Ed. 2d 827
(1988) (plurality opinion)) a signal of something illicit, so a regulator might allow
statistical disparities to play some role in the evidentiary process… But arguably the
disparate-impact provisions sweep too broadly to be fairly characterized in such a
fashion--since they fail to provide an affirmative defense for good-faith (i.e.,
nonracially motivated) conduct, or perhaps even for good faith plus hiring standards
that are entirely reasonable. This is a question that this Court will have to consider in
due course. It is one thing to free plaintiffs from proving an employer's illicit intent,
but quite another to preclude the employer from proving that its motives were pure
and its actions reasonable.”

1.3. A Theoretical Framework for Strategic Minority Opinions
It has been pointed out that judges who are made to choose between their personal preferences
and following the letter of a repressive law offer an alternative in dissenting or concurring opinions
hoping to set the foundation for legal change and incite public debate (Schmidt and Shapiro 2010-
2011). Strategic minority opinions regardless of their relationship to the majority opinion (Do they
expand it? Narrow it? Weaken it?) have the same potential impact, which is the expansion of judicial
dialogue by inviting other actors into it and change in legal discourse. Many memorable minority
opinions have captured the public and scholars’ attention because of their forceful language or their
appeal to logic and humanity, but the opinions that matter in terms of furthering the Court’s policy-

25
making power are those which not only target an audience but provide the means for that audience
to seek different successful solutions either in the courts or within the general political arena,
regardless of passionate language being used to convey these signals. In fact, many such minority
opinions signal these solutions in the form of new methods, new standards, or new tests that should
be adopted for deciding cases and updating legal doctrine, which language can hardly be described as
moving. In his overview of dissenting opinions in the Supreme Court, Urofsky (2015) notes how
stridency in tone is actually counter-productive for the authors’ message by hurting the chances for
intellectual arguments in a collegial manner (p. 15).
For legal scholars, studying the language of the Court’s opinions is of self-evident importance;
language is a vehicle for the law and commanding this language allows attorneys to better argue
future cases and litigants to better pursue their interests, whether those be arbitration-related or
policy-oriented. Therefore, what is conveyed in the form of doctrine through minority opinions has
value towards future litigation because it reveals a range of legal doctrine, which, if meritorious,
could garner enough support to become prevalent doctrine or simply a persuasive argument in the
future. The problem with legal approaches to understanding minority opinions is that all minority
opinions are considered to be of the same value despite their dissimilar nature and disregarding the
personal inclinations of judges or the environment within which they function. If language matters,
then all language should matter to legal scholars, so strategy in minority opinions is a concept neither
intelligible nor falsifiable to the legal model, understood on the basis of ill-defined standards of
“skillfully versus poorly-written”. Minority opinions then become something almost idiosyncratic,
attributed to differences in interpreting doctrine among the justices.
On the other hand, the attitudinal model (Segal and Spaeth 2002) goes significantly further in
explaining the practice of strategically dissenting and concurring. Under this model, judges are
policy-oriented actors who vote their true preferences: “simply put, Rehnquist voted the way he did

26
because he was extremely conservative; Marshall voted the way he did because he was extremely
liberal” (p. 86). But the attitudinal model does not recognize the obvious obstacles justices face. If
justices seek their true policy preferences all the time, then why do they not always author strategic
minority opinions when their view does not convince a majority of the Court? This model of judicial
behavior does not differentiate between good and bad cases, or between appropriate and
inappropriate vehicles of legal change. It assumes that justices will throw in the same amount of
effort regardless of the quality and issue area of the case before them. Additionally, there is another
crucial constraint a “true preferences” attitude does not consider: do justices author a strategic
minority opinion (which by definition aims to alter legal doctrine) and invite litigation or legislation
regardless of how close their views are with the majority opinion’s, thus risking further distancing
from their desired policy?
Rational choice theory, an evolution of the attitudinal model, however, complements the
practice of strategic minority opinions. Epstein and Knight (1998) have advanced a model of judicial
behavior that assigns great importance to institutional factors and theorizes that while judges want to
pursue their interests and advance their policy preferences in the form of legal decision-making, they
understand and consider the constraints imposed upon them by the “rules of the game”. In other
words, unlike Segal and Spaeth's attitudinal model (2002), judicial votes under the new-
institutionalist umbrella are not a clear representation of judges' preferences; on the contrary, judges
compromise and accordingly vote on cases for many reasons, some of which are creating a spirit of
collegiality with other judges, bargaining and exchanging favors in the form of votes with other
judges, or deferring to the legislative or executive will. Judges, according to the theory, also behave
strategically with the authorship of opinions and the doctrine that is promulgated in each case. So,
rational choice theory assumes that judges have preferences and will do what they can to promote
them, taking costs into consideration and navigating the institutional constraints they face

27
(Wahlbeck et al. 1999), the simplest of all being that in appellate courts they have to convince the
majority of the sitting panel of the validity of their preferences.
Under the strategic model, we can better explain this type of dissents and concurrences.
Writing a minority opinion is a costly endeavor; it strains collegial relationships and takes up
important time (Epstein et al. 2013, 256). Authoring an opinion that stands a better chance of
representing the majority in the future offsets those costs and allows the judge to avoid some of the
blowback, since in a strategic minority opinion, the judge is offering a legal strategy that has not yet
been formally considered and rejected. As others have explained, judges are in it for the long run;
losing an argument is a temporary loss. By crafting and offering strategies to litigants and political
bodies like Congress, judges can further their legal and policy preferences by opening a dialogue with
their audiences (Baum 2008). Rational choice theory better explains this phenomenon because the
users of strategic minority opinions understand the institutional constraint of having the fate of their
policy preference dependent upon the astuteness of the recipients of the signal, who need to bring
“good vehicle” cases that use the signaled strategy before the judges. This manuscript builds,
therefore, upon our understanding of judicial behavior through the rational choice framework and
expands it to include new signs and practices of strategic behavior.

1.4. Hypotheses
There is an abundance of anecdotal evidence of Supreme Court justices engaging in the
practice of strategic minority opinions, especially when these achieve their goal of overturning
precedent or setting new legal doctrine. The practice itself is hardly new. Justice John Marshall
Harlan’s dissent in The Civil Rights Cases, 109 U.S. 3 (1883), where he draws a connection between
private businesses and their public character due to engaging in commercial activities that require a
state license, is but one early example of strategically dissenting, yet a very famous one since the

28
logic was upheld by the Civil Rights Act of 1964, was used in Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964), and shaped discrimination litigation in general. But so far there has been
no systematic study of this practice. What is the connection between authoring strategic minority
opinions and judicial behavior? Is the practice popular among specific judges only? What personal
characteristics, if any, reveal a tendency towards this behavior?
The theories and findings discussed above inform the testing of a few hypotheses in this study.
First, with regards to personal characteristics, I argue that judges who are more extremely
ideologically positioned will be more prone to issuing a strategic minority opinion than those with
more centrist ideologies. Ideology is the one consistently influential determinant in the multitude of
studies of judicial behavior. Those who are more charged ideologically are more likely to discard the
costs of issuing minority opinions that invite more litigation or legislative overriding of the Court
(Carrubba et al. 2012, Lindquist and Cross 2009, Segal and Spaeth 1996, Wrightsman 2006 and
others). Previous studies, focusing on dissenting opinions only, link for example progressive politics
of inclusion with “empathetic” liberal justices through the educative and mobilizing nature of
dissenting opinions (Guinier 2008). But if judges are rational actors, then all judges will wish to shift
the status quo towards their preferences regardless of their starting ideological position. The
question lies in how they balance the above considerations. Similarly, I expect that the further
ideologically a justice is found from the majority opinion author, the more motivated she is to author
a strategic minority opinion, because the distance abates the fear of adding to collegial animosity or
burning bridges with those more closely situated. Based on this, the first two hypotheses posit that:
Hypothesis 1: Justices lying further of the ideological median will author more strategic than non-strategic minority
opinions than ideologically moderate ones.
Hypothesis 2: As the ideological distance between majority opinion author and minority opinion author in a given case
increases, the probability of strategically dissenting and concurring also increases.

The model also invites the testing of whether the tendency to concur or dissent strategically in

29
a case is encouraged or undermined by the voting behavior of others. From the theory, I expect that
the more minority votes present in a case, the more an antithetical justice is tempted to undermine
the majority coalition with a strategic dissent and the more she will expand the majority coalition
with a strategic concurrence when the author finds themselves closer to the majority. Corley (2010)
argues that minimum winning coalitions deter justices from writing special concurrences
10

specifically, but it is worth checking whether this hesitation could be diluted depending on the
intensity of one’s ideological preferences as other research suggests (Brenner and Heberlig 2002).
Hypothesis 3: The higher the number of minority votes in a given case, the more likely it is that a justice will issue a
strategic than a non-strategic minority opinion, regardless of the ideological direction of the majority opinion.

In addition, justices who favor a more activist character for the Court are expected to make
more extensive use of strategic dissents and concurrences, since these particular actors' vision for
the role of courts in a political system propels them towards a more centralized, vigilant presence in
promoting new policies. As previous studies have shown regarding activist practices even in legal
systems where the doctrine of upholding precedent holds an important position, judges do not
necessarily feel constrained to follow it (Segal and Spaeth 1996). Limiting barriers to litigation by
loosening the criteria for the justiciability of cases is a practice attributed to activist judges (Lindquist
and Cross 2009), which dovetails with the goal of strategic minority opinions towards inspiring
future litigation/legislation to alter policy and doctrine (Kagan 2001, Lindquist and Cross 2009).
From the above:
Hypothesis 4: Activist justices are more inclined to author strategic vs. non-strategic minority opinions than less activist
justices.
Justices who wish to reconfigure doctrine, but do not convince enough colleagues to do so, are

10
Special concurrences are those that agree with the judgement of the majority, but not with the logic of the
majority, and therefore could severely weaken the authority of majority opinions. Therefore, special
concurrences enjoy a greater probability of also qualifying as strategic minority opinions based on the
classification scheme argued by the author.

30
also expected to utilize any doctrinal aids they possess. I expect the tendency to strategically concur
or dissent to increase when justices find problems with the clauses, statutes, etc. they review, namely
the problem of vagueness. A vague law is exposed to varying interpretations if constitutional, and to
an increased likelihood of being struck down as unconstitutional if statutory. Vague laws are bad
laws (Chemerinsky 2002), so asking for their reinterpretation, clarification, or elimination is less
likely to incur the annoyance of colleagues and the cases themselves are more amenable to new
interpretations through strategically opining. When a law is vague, justices rely on different elements
for clarifying it, depending on their personal tendencies. For example, originalists prefer to rely on
legislative history or the meaning of each word as it would be understood at the time it was written,
whereas consequentialists will look at the sociopolitical outcomes of each interpretation and be
informed by these in their decision-making (Segal and Spaeth 2002). So, vagueness of the laws, or at
least proclaimed vagueness of the laws, enables different justices to reach different conclusions,
especially when they are seeking to satisfy different policy preferences. Accordingly,
Hypothesis 5: When justices find the law under review vague, the probability of strategically concurring or dissenting
increases compared to issuing a non-strategic minority opinion.

In a similar vein, it is expected that the presence of a single strategic minority opinion
increases the likelihood that more colleagues will author strategic minority opinions, since it signals
the abeyance of seeking (at least somewhat of a) consensus. It is also quite possible the presence of
multiple minority opinions signals complexity with the law reviewed, which allows for both multiple
interpretations and action from the part of justices, i.e. more strategic minority opinions.
Hypothesis 6: The presence of a strategic minority opinion in a given case increases the probability for more strategic
behavior in the same case than non-strategic minority opinions.

1.5. Data and Methods

31
To test the above hypotheses, I constructed a novel database of all minority opinions by
Supreme Court justices published between the 1980-2010 terms, modeled after the Spaeth Supreme
Court Database (2016), from which I also used various independent and control variables. This
resulted in 4,753 minority opinions- 2,819 dissents and 1,934 concurrences with each
observation/row in the database representing one minority opinion. Through detailed content
analysis, I collected and coded all minority opinions as to their strategic status; 0 for non-strategic
and 1 for strategic.
11
This forms the dependent variable, Strategic Status, of my analysis, as it
constitutes the behavior I seek to explain in this chapter. The coding scheme for awarding strategic
status to a minority opinion was discussed in the modeling portion, but they are worth reiterating; to
be coded as strategic, an opinion must (1) proffer a standard, interpretation, or test, or cite new
caselaw that was not discussed or mentioned in the majority opinion and (2) make apparent a
recipient or audience. An exception to this rule was when the justice explicitly said they would
overturn precedent and invited cases as a vehicle to do so. On the other hand, the discussion of
legislative history as an argument for a specific point of view was excluded from the list of strategic
arguments regardless of its originality, because using legislative history as a strategy does not offer
litigants a meaningful tool for challenging the decision or legal logic in the future. The rule for
coding recipients is identifying the party that the justice addresses in the opinion; Aim is coded 0 for
no recipient, for example when justices issue a concurrence or dissent that features no
argumentation; 1 for the political branches, such as Congress, the executive, or state legislatures; 2
for other judges in the same or lower courts; 3 for litigants; and 4 for a combination of audiences.
For example, an appeal by a justice to Congress for action, which is not accompanied by an original
method is coded 0 for Strategic Status and 1 for Aim.
12
I use predicted probabilities to see whether a

11
The text of the full opinions was retrieved from Lexis Advanced.
12
Because strategic minority opinions are a new concept that I develop and test for in this manuscript, a
second coder was given the same rules for coding and after training, approximately 5% of the opinions on the

32
pattern exists with regards to the audience the justices address, i.e. if one type of audience propels
more strategic minority opinions than others. I also create dummy variables that reflect each
nominal category of Aim to check whether one category drives the results.
The first independent variable created for this project is Author Ideology and is borrowed from
the Judicial Common Space project. The ideological scores on JCS range from -1 being the most
liberal, to 1 being the most conservative. I also construct a binary variable from the same scores with
2 categories that represent moderates and extreme ideological justices. The cut-off points for these
categories were the median Court member’s ideology scores in each of these two broad tendencies.
This accounts for nuance in the intensity of ideological preferences and compares moderates to
extremes, not only liberals to conservatives. A derivative independent variable that was created is
Authors Ideology Distance, which measures the absolute distance between the author of the minority
opinion and the author of the majority opinion in each case.
The following independent variable is Vagueness, coded 1 when the justice claims the law
before her is vague,
13
0 otherwise. In this instance, the choice the author made was to consider the
justices’ personal affirmations that the law before them is vague, and not the objective status of a law
as vague or not, because vagueness is an inherently problematic concept to define. While it is
common understanding that constitutional clauses are vague, vagueness of statutes is not a given
and is dependent upon multiple factors. What matters for the purposes of this study are the justices’
own opinions vis-à-vis the law, because labeling them as vague offers ample choices as to which
interpretation to support.

dataset were recoded for Strategic Status, Aim, and Vagueness. The intercoder reliability test performed revealed
a Cohen’s kappa of 0.82 and agreement percentage of 91% for Strategic Status, a Cohen’s kappa of 0.7 and
agreement percentage of 89% for Aim, and a Cohen’s kappa of 0.88 and agreement percentage of 97.5% for
Vagueness. According to Landis and Koch (1977), a Cohen’s kappa above 0.8 shows near perfect agreement.
13
To afford vagueness status, the justice needs to mention one of these words in relation to the statute or
law: vague, abstract, ambiguous, confusing or confusion, unclear-not clear, lacks clarity, obscure, uncertain,
imprecise (language), and their derivatives.

33
Additionally, borrowing the logic from Lindquist and Cross (2009), I develop a measurement
of activism by calculating how each justice votes according to five different areas of law (judicial
review of federal statutes, judicial review of state and local laws, judicial review of executive branch
actions, justiciability, overruling precedent)
14
and then construct an aggregate score into percentage
form based on the five individual dimensions, labeled Percent Activism. Unlike Lindquist and Cross,
however, I leave the ideological dimension out of measuring activism, since I account for ideology
using Judicial Common Space scores (Epstein et al. 2007)
15
and including an additional measurement
of ideology would result in collinearity.
Continuing with independent variables, Minority Votes is a count variable borrowed from the
Spaeth database, which simply displays the number of minority votes in each case and intends to
measure voting coalitions in each case where a minority opinion appears, while two other count
variables are created that measure the number of other minority opinions found in the same case,
Minority Opinion Count, and the number of other strategic minority opinions found in the same case,
Strategic Minority Opinion Count.
16

14
For two of the justices, Potter Stewart and Elena Kagan, the composite variable Cumulative Activism is
constructed out of four individual scores and not five, because in the years covered by the database, these two
justices did not cast votes in cases dealing with review of executive branch actions. In 1981, Potter Stewart
retired from the Court and Elena Kagan began her tenure in the 2010 term. I rescaled Cumulative Activism into
a percentage score, Percent Activism so as to not bias the variable with lower scores from these two justices.
15
I use Judicial Common Scores as a measurement of ideology because they were constructed so as to be
comparable with the ideological scores of congressional members and the executive (DW-Nominate), a line
of inquiry that is taken up in further research on institutional interaction. From the creators of JCS, “the
judicial common space method of determining judicial ideologies combines Giles, Hettinger, and Pepper’s
senatorial courtesy method of determining the ideology of court of appeals judges with the Martin-Quinn
method of determining the ideology of Supreme Court Justices, in order to provide a measure of judicial
ideology that is common to both court of appeals judges and Supreme Court Justices.”
16
An alternative version of these two variables is used with dummy variables for each concept; in the first
instance, coded 0 for no other minority opinions in the same case and 1 for at least one other minority
opinion present, and in the second, coded 0 for no other strategic minority opinions in the same case and 1
for at least one other strategic minority opinion. Results show practically zero difference between the two
versions of these two variables.

34
In the same vein, I employ certain control variables to check for the influence they may have
on strategically dissenting and concurring. As others have pointed out, the overall ideological
composition of the Supreme Court may influence the collective and individual “spirit” of the
justices. When the Court swings more conservatively or liberally, individual justices may either take
advantage of the opportunity to advance their policy preferences by pushing the Court’s rationale or
express their frustration by issuing more minority opinions so as to influence a restoration to the
previous ideological status quo (Wahlbeck et al. 1999). Therefore, I use Judicial Common Space
scores to show the overall tendency of the Court during that term through the variable labeled
Median Ideology, which reflects the Court’s ideological median member. Appendix B also features an
alternative model with fixed effects for each justice, but fixed effects do not work well with ideology
and ideologically-inspired measures, such as activism due to high collinearity.
17

Moreover, I test for fluctuations in the caseload the Court faces each term studied in this
manuscript. Despite the very light caseload reviewed by the Supreme Court compared to those of
lower federal courts,
18
it has been argued that increased caseload stifles the probability of minority
opinions in general because it imposes further costs on the justices’ time and considerations for a
high-quality minority opinion (Epstein et al. 2013, Hettinger et al. 2006). Finally, I control for tenure
effects. There are two conflicting indirect applicable expectations from the literature that discusses
this issue (Hagle 1993). The first is that justices will issue more strategic minority opinions as they
become more experienced, are privy to realizations they lacked early on during their tenure, and
learn how to navigate the collegial game with its alliances better with the passage of service time.

17
Justice fixed effects explain 90% of Author Ideology and 100% of Percent Activism. Additionally, ideological
scores are constructed on the basis of ideal points between the various justices; on the other hand, justice
fixed effects isolate this concept rendering it unintelligible. A justice fixed effects model would require these
independent variables of interest to be left out, which would make the testing of some of the hypotheses
stated above impossible.
18
Almost all of the 7,000-8,000 petitions the Supreme Court receives annually are screened by law clerks.

35
The second intuitive possibility is that justices issue more strategic minority opinions when they are
fresher on the bench (Epstein et al. 2013, p. 299), first because they are eager to establish for
themselves a hard-working, authoritative “judicial persona” and second, because they have not
entirely learnt yet how to bargain and compromise. Tenure Length, therefore, is coded as the number
of years a justice has sat on the Court by the term the minority opinion is written minus that term.
I use logit regression due to the binary nature of the dependent variable (strategic, non-
strategic) and predicted values to illustrate differences and nuances among specific sets of
expectations.

1.6. Results
The results from the logistic regression model appear on Table 1.1 below. In this model, I
examine whether specific behavioral and institutional attributes inform the practice of strategically
dissenting and concurring. The model confirms most of the hypotheses and reveals noteworthy
relationships between institutional control variables that respond to questions posed by previous
studies.
First of all, the results show that the more conservative a justice is ideologically, the higher the
probability for authoring strategic minority opinions, since the coefficient for the variable Author
Ideology is significant at the 0.05 level, two-tailed and moving in a positive direction. While there has
been no explicit relationship specified between the type of ideology (only the intensity), the observed
relationship between conservative justices and the willingness to invite more litigation/send issues
back to the other branches is an interesting result.

-------------------------- TABLE 1.1 ABOUT HERE --------------------------

36
Since Author Ideology posits a significant relationship between it and the dependent variable, I
create a binary measure of Author Ideology that separates moderate conservatives and moderate
liberals from more extreme ideological colleagues by finding the median justice ideology in every
camp, so as to test for Hypothesis 1, which posits that extreme ideologues are more likely to
strategically dissent and concur than moderate ones. I move forward by calculating predicted
probabilities for each category and the results, as displayed in Figure 1.2, confirm the hypothesis.
Holding all other variables to their means, justices with ideology scores above the median for
their group present an almost 50% probability of strategy in minority opinions, compared to approx.
41% for the same action for those scoring below the median justice in each ideological group.

--------------------------- FIGURE 1.2 ABOUT HERE ------------------------

Continuing with the next explanatory variable and the second hypothesis, Author Ideology
Distance is statistically significant at the 0.05 level moving in the expected positive direction. This
suggests that as the ideological distance between minority opinion author and majority opinion
author increases, so does the probability for strategic concurrences and dissents, confirming
Hypothesis 2. The same is not the case with Hypothesis 3 and Minority Votes as there is no statistical
significance between the number of minority votes and authoring a strategic minority opinion;
19

minimum majority coalitions do not seem to further motivate strategic behavior, but Activism, as

19
In the Appendix, I divide the sample into concurrences and dissents and estimate two additional models so
as to check for differences among the two actions, strategic concurring or dissenting, since some literature
suggests each type of opinion means different things for rational choice actors. The truncated sample comes
at a loss of explanatory power, so not all statistically significant variables here remain significant on the half
models, but higher p-value results suggest that in Model 2A as the number of minority opinions increases and
the minimum majority coalition decreases, justices issue more strategic dissents. The opposite is true for
Minority Votes in Model 2B, which is limited to concurring opinions only; as minority votes increase, strategic
concurrences decrease.

37
expected, is significant at the 0.01 level in the right direction, which means that the more activist a
justice is, the more inclined to author a strategic minority opinion.
Hypothesis 5 states that when justices find the law under review vague, the probability of
strategically concurring or dissenting increases. The hypothesis is affirmed by the results, as Vagueness,
as stated by the justices themselves, is statistically significant at the 0.05 level, moving in the expected
positive direction.
Finally, from the list of hypothesized relationships, Strategic Minority Opinion Count is strongly
significant at the 0.01 level, moving in the expected direction, which means that the existence of one
strategic minority opinion opens the way for more strategic minority opinions. This confirms
Hypothesis 6.
Before delving into the model’s control variables, it is crucial to check whether results are driven
by a specific justice. Table 1.5 describes how many minority opinions each justice wrote and how many
out of those were strategic during the 31 terms covered in this study.

------------------- TABLE 1.3 ABOUT HERE -------------------
Figure 1.4 below shows the mean probability of authoring a strategic minority opinion as a
proportion of all minority opinions, grouped by ideology for an easier comparison. Justices that are
listed in both groups (Sandra Day O’Connor, David Souter, and Byron White) have swung from liberal
to conservative and vice versa during their tenure in the 31 years covered, so the mean probability of
strategic behavior for these two justices is displayed for both their liberal and conservative phases.

--------------------- FIGURE 1.4 ABOUT HERE --------------------

38
Chief Justice Roberts along with Justices Brennan, Thomas, Kagan, Marshall, and O’Connor
(in her liberal phase) are in the forefront with a mean probability for strategy in minority opinions
above 0.5; in other words, more than half of their minority opinions are likely to be strategic.
However, the rest do not trail that far back, since most justices score above 0.4. The lone exception
is Justice Souter in his (early) moderate conservative phase with a mean 0.36 probability, less than
everyone else. His strategic behavior goes on to match the other justices’ when he joins the liberal
camp. Furthermore, the results of the alternative FE model (without ideology/activism variables)
confirms the basic findings with regards to the other variables of the main model (See Appendix B).
Furthermore, Table 1.1 shows that the presence of other minority opinions in general is not
strongly linked to the explained behavior. In stark contrast with Hypothesis 6, it cannot be fully
supported that the general presence of multiple minority opinions prompts strategic behavior.
Minority Opinion Count, while moving to the direction expected by the literature, barely reaches
significance at the 0.1 level. To reiterate, there is an expectation that minority opinions dissolve
collegial norms, signaling to the other justices that all is fair in pursuing their preferred policies.
However, it appears most likely that strategic minority opinions signal the suspension of
cooperation, prompting more strategy.
The type of minority opinion chosen does not matter for the justices as was expected and
Median Ideology is equally non-significant, indicating that the overall “spirit of the times” of the Court
has no effect on their decision to issue a strategic minority opinion. Nevertheless, the lower the
number of cases all justices have to review each term the more likely they will strategically dissent or
concur with Caseload significant at the 0.01 level moving in a negative direction. This confirms the
discussion on the quality of opinions authored and the required amount of work that needs to be
put in for a strategic minority opinion. Tenure Length is statistically significant at the 0.1 level, two-
tailed moving in a positive direction. Based on this, we can distinguish a delicate relationship

39
between more years on the Supreme Court and authoring strategic minority opinions.
Finally, the model (not featured in Table 1.1) includes checking for the possibility that a
specific audience drives the results, but that is not the case. Compared to No Aim (baseline variable),
addressing other Supreme Court justices or lower court judges (Aim Colleague), the legislative or
executive branches (Aim Branch), litigants (Aim Litigants), or a combination of those (Aim Multiple),
positively affects the logistic probability for strategy at the 0.01 level for each category
20
.

1.7. Discussion
What makes certain minority opinions consequential is their ability to transmit signals to
litigants and legislators and incite dialogue in multiple forums. Strategic minority opinions matter
because they are jurisgenerative tools (Shapiro and Stone Sweet 2002) and are porters of legal
change; they offer more to the audience they target than non-strategic minority opinions, thus
expanding judicial dialogue not only among judges, but among judges and their audiences. It is not
uncommon to witness citizens, who feel that they are on the losing side with a particular Court
decision, be motivated by a strategic dissent, or even those who feel the Court's decision left crucial
aspects of an issue unaddressed, pursue the logic delineated in strategic concurring opinions through
voting or litigation, because this is the main objective behind strategic minority opinions. This study
forms the first attempt the author is aware of to systematically study this type of opinion via content
analysis and empirically investigate their relationship with the people who author them, as well as the
relationship between them and specific intra-court properties. Strategic dissents are studied here in

20
The vast majority of minority opinions covered in this study address the justices’ colleagues in the Supreme
and lower courts (more than 60%). Multiple Aim, which includes various combinations of signal recipients,
accounts for approximately 25% of the 4,752 minority opinions. The other categories (No Aim, Aim Litigant,
Aim Branch) are approximately 5% each of the minority opinions targeted audience.

40
the same context as strategic concurrences, because both form a tactic of the same nature and
possess the same goals, to shift majority doctrine in the future.
The findings of this part reveal a special relationship between strategic minority opinions, and
strong ideologues and activist-inclined justices because, as theorized, these two behavioral categories
are more willing to sustain the costs of strategic concurring and dissenting. But relationships with
colleagues on the bench do not go undervalued, again as expected by the theory of rational decision-
making; justices strategically dissent and concur more when they are ideologically further away from
the majority opinion author, thus risking a bit less in terms of causing animosity or ruining chances
for bargaining. That justices are actually rational policy seekers is bolstered by the results, since more
or less caseload respectively hampers or allows them to strategically opine and additionally, the
existence of one single strategic opinion increases the probability for more opinions of the same
nature in the same case because in that instance it signals that justices are not willing to forgo their
ability for sua sponte consideration of questions and solutions. The phenomenon of authoring
strategic minority opinions further reveals its connection to the institution in which it is practiced via
the influence of justices’ tenure length and the range of possibilities for action that vague doctrine
allows them.
This manuscript theorizes a novel concept by setting specific standards and expands on the
strategic model of judicial behavior by revealing previously unaccounted for practices that support
rational choice accounts in the context of courts and judicial politics. Responding to the often-posed
question “what makes some minority opinions more consequential than others?”, this study offers
an answer. While the story of strategic minority opinions is hardly fully developed here, since there
may exist a multitude of relationships still unaccounted for, this chapter lays the foundation for
further research by first identifying behavioral characteristics and intra-institutional qualities that
affect the practice of authoring them. It is only a first account of concurrent effects on authoring

41
this type of minority opinion and the need for future research is evident, for example, on
understanding why conservative justices are more inclined towards this practice than others or what
the effect of minimum majority coalitions on strategic minority opinions might be. It also invites
research of a broader scope, primarily for determining how the inter-institutional environment may
affect the writing of strategic minority opinions and how, in the end, such opinions may translate
into judicial policy-making for their authors.

1.8. Bibliography
Baird, Vanessa and Tonja Jacobi. 2009. “How the Dissent Becomes Majority: Using Federalism to
Transform Coalitions in the U.S. Supreme Court.” Duke Law Journal. Vol. 59, No. 2, pp. 183-238.

---------- 2009. “Judicial Agenda-Setting Through Signaling and Strategic Litigant Responses.” Journal
of Law and Policy. Vol. 29, pp. 215-239.

Baum, Lawrence. 1997. The Puzzle of Judicial Behavior. Ann Arbor, MI: University of Michigan Press.

---------- 2008. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton University Press.

Black, Ryan C, and Ryan J Owens. 2009. “Agenda Setting in the Supreme Court: The Collision of
Policy and Jurisprudence.” Journal of Politics, Vol. 71, No. 3, pp. 1062–1075.

Black, Ryan. C., Ryan J. Owens, J. Wedeking and P. C. Wohlfarth. 2016. U.S. Supreme Court Opinions
and Their Audiences. Cambridge: Cambridge University Press.

Brenner, Saul, and Eric Heberlig. 2002. “In My Opinion...: Justices' Opinion Writing in the U.S.
Supreme Court, 1946-1997.” Social Science Quarterly, Vol. 83, No. 3, pp. 762–774.

Caldeira, Gregory and Christopher Zorn. 1998. “Of Time and Consensual Norms in the Supreme
Court.” American Journal of Political Science, Vol. 42, No. 3, pp. 874– 902.

Caldeira, Gregory, John Wright, and Christopher Zorn. 1999. “Sophisticated Voting and Gate-
keeping in the Supreme Court.” Journal of Law, Economics, and Organization, Vol. 15, No. 3, pp.
549-572.

Carrubba, Cliff, Barry Friedman, Andrew D. Martin, and Georg Vanberg. 2012. “Who Controls the
Content of Supreme Court Opinions?” American Journal of Political Science, Vol. 56, No. 2, pp.
400-412.

Chemerinsky, Erwin. 2002. Constitutional Law Principles and Policies, Aspen Publishers.

42
Collins, Paul. 2004. “Variable Voting Behavior on the Supreme Court: A Preliminary Analysis and
Research Framework.” Justice System Journal, Vol. 25, No. 1, pp. 57-74.

Corley, Pamela. 2010. Concurring Opinion Writing on the U.S. Supreme Court. State University of New
York Press.

Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press.

Epstein, Lee, Andrew D. Martin, Jeffrey A. Segal, and Chad Westerland. 2007. “The Judicial
Common Space 1.” Journal of Law, Economics, and Organization, Vol. 23, No. 2, pp. 303-325.

Epstein, Lee, William Landes, and Richard Posner. 2011. “Why (and When) Judges Dissent: A
Theoretical and Empirical Analysis.” Journal of Legal Analysis, Vol. 3, No. 1, pp. 101–137.

Epstein, Lee, William Landes, and Richard Posner. 2013. The Behavior of Federal Judges: A Theoretical
and Empirical Study of Rational Choice, Boston, MA: Harvard University Press.

Eskridge, Jr., William. 1991. “Overriding Supreme Court Statutory Interpretation Decisions.” Yale
Law Journal, Vol. 101, No. 2, pp. 331-455.

Eversley, Lauren. 2016. “#JOINTHEDISSENT: Ruth Bader Ginsburg and the Hobby Lobby
Effect.” Albany Law Review, Vol. 79, No. 1, pp. 269-295.

Fischman, Joshua and David Law. 2009. “What Is Judicial Ideology, and How Should We Measure
It?” Washington University Journal of Law & Policy, Vol. 29, pp. 133-182.

Giles, Michael, Virginia Hettinger, and Todd Peppers. 2001. “An Alternative Measure of Preferences
for Federal Judges.” Political Research Quarterly, Vol. 54, No. 3, pp. 623-641.

Ginsburg, Ruth Bader. 1990. “Remarks on Writing Separately.” Washington Law Review, Vol. 65, No.
1, pp. 133-150.

--------- 2008. “Dissent is an Appeal for the Future.” Alaska Bar Rag, Vol. 32, Issue 2.

Guinier, Lani. 2008. “Demosprudence Through Dissent.” Harvard Law Review, Vol. 122, No. 1, pp.
4- 138.

Hagle, Timothy. 1993. “Freshman Effects for Supreme Court Justices.” American Journal of Political
Science, Vol. 37, No. 4, pp. 1142-1157.

Haynie, Stacia. 1992. “Leadership and Consensus on the U.S. Supreme Court.” Journal of Politics, Vol.
54, No. 4, pp. 1158–1169.

Hansford, Thomas G. and James F. Spriggs II. 2006. The Politics of Precedent on the U.S. Supreme Court.
Princeton, NJ: Princeton University Press.

Hettinger, Virginia, Stefanie Lindquist, and Wendy Martinek. 2004. “Comparing Attitudinal and
Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals.” American Journal of

43
Political Science, Vol. 48, No. 1, pp. 123-137.

Hinkle, Rachael and Michael Nelson. 2017. “How to Lose Cases and Influence People.” Statistics,
Politics and Policy, Vol. 8, No. 2, pp. 195-221.

Lewis, Jeffrey B., Keith Poole, Howard Rosenthal, Adam Boche, Aaron Rudkin, and Luke Sonnet.
2018. Voteview: Congressional Roll-Call Votes Database. https://voteview.com/

Lindquist, Stephanie and Frank Cross. 2009. Measuring Judicial Activism. Oxford; New York: Oxford
University Press.

Kagan, Robert. 2001. Adversarial Legalism: The American Way of Law. Cambridge, Mass.: Harvard
University Press.

Landis, J. Richard and Gary Koch. 1977. “An application of Hierarchical Kappa-Type Statistics in
the Assessment of Majority Agreement Among Multiple Observers.” Biometrics, Vol. 33, No. 2,
pp. 363-374.

Lopeman, Charles S. 1999. The Activist Advocate: Policy-making in State Supreme Courts. Westport, CT:
Praeger.

Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. 2000. Crafting law on the Supreme Court:
The Collegial Game. New York: Cambridge University Press.

Maveety, Nancy, Charles C. Turner, and Lori Beth Way. 2010. “The Rise of the Choral Court: Use
of Concurrence in the Burger and Rehnquist Courts.” Political Research Quarterly, Vol. 63, No. 3,
pp. 627-639.

Noble Lanier, Drew. 2011. “Acclimation Effects and the Chief Justice: The Influence of Tenure and
Role on the Decisional Behavior of the Court’s Leader, 1888-2007.” American Politics Research,
Vol. 39, No. 4, pp. 682–723.

O’Brien, David. 1999. “Institutional norms and Supreme Court Opinions: On Reconsidering the
Rise of Individual Opinions”. In Supreme Court Decision-making: New Institutionalist Approaches, eds.
Cornell W. Clayton and Howard Gillman. Chicago: Chicago University Press.

Perry, H. W. 1991. Deciding to Decide: Agenda Setting in United States Supreme Court. Boston, MA:
Harvard University Press.

Peterson, S. A. 1981. “Dissent in American Courts.” Journal of Politics, Vol. 43 No. 2, pp. 412–434.

Schmidt, Christopher W . and Carolyn Shapiro. 2010-2011. “Oral Dissenting on the Supreme Court.”
William and Mary Bill of Rights Journal, Vol. 19, No. 75, pp. 76-129.

Segal, Jeffrey A., and Harold J. Spaeth. 1996. “The Influence of Stare Decisis on the Votes of
United States Supreme Court Justices.” American Journal of Political Science, Vol. 40, No. 4, pp.
971-1003.

44
---------- 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge University Press.

Shapiro, Martin and Alec Stone Sweet. 2002. On Law, Politics, and Judicialization. Oxford; New York:
Oxford University Press.

Smyth, Russell and Paresh Kumar Narayan. 2006. “Multiple Regime Shifts in Concurring and
Dissenting Opinions on the U.S. Supreme Court.” Journal of Empirical Legal Studies, Vol. 3, No. 1,
pp. 79–98.

Spaeth, Harold J. 2016. The Supreme Court Database. Center for Empirical Research in the Law at
Washington University.

Spriggs, James and Thomas Hansford. 2001. “Explaining the Overruling of U.S. Supreme Court
Precedent.” The Journal of Politics, Vol. 63, No. 4, pp. 1091–1111.

Sunstein, Cass. 2003. Why Societies Need Dissent. Boston, MA: Harvard University Press.

Turner, Charles, Lori Beth Way, and Nancy Maveety. 2010. “Beginning to Write Separately: The
Origins and Development of Concurring Judicial Opinions.” Journal of Supreme Court History,
Vol. 35, No. 2, pp. 93-109.

Urofsky, Melvin. 2015. Dissent and the Supreme Court: Its Role in the Court's History and the Nation's
Constitutional Dialogue. New York: Pantheon Books.

Way, Lori Beth and Charles C. Turner. 2006. “Disagreement on the Rehnquist Court: The Dynamics
of Supreme Court Concurrence.” American Politics Research, Vol. 34, No. 3, pp. 293-318.

Wahlbeck, Paul, James Spriggs, and Forrest Maltzman. 1999. “The Politics of Dissents and
Concurrences on the U.S. Supreme Court.” American Politics Quarterly, Vol. 27, No. 4, pp.488-
514.

Walker, Thomas, Lee Epstein, and William Dixon. 1988. “On the Mysterious Demise of Consensual
Norms in the United States Supreme Court.” Journal of Politics, Vol. 50, No. 2, pp. 361-389.

Wrightsman, Lawrence S. 2006. Psychology of the Supreme Court. NC: Oxford University Press.

45

1.9. Appendix A: On the Behavioral and Institutional Characteristics of Strategic Minority
Opinions Tables and Figures

Table 1.1
Strategic Minority Opinions and Behavioral-
Institutional Attributes

Independent Variables

Strategic Status coefficients
Author Ideology .341** (.13)
Authors Ideology Distance .189** (.096)
Vagueness .188** (.09)
Percent Activism .026*** (.006)
Minority Votes .004 (.025)
Strategic Minority Opinion Count .188*** (.05)
Minority Opinion Count -.052* (.038)
Opinion Type .073 (.074)
Caseload -.003*** (.001)
Median Ideology -.554 (.428)
Tenure Length .008* (.004)
Constant -4.73*** (.644)
N 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Tenure
Length, Median Justice, and Opinion Type)

46

Figure 1.2

.35 .4 .45 .5 .55
Probability of Minority Opinion Strategy
Extremes Moderates
Intensity of Ideology
(95% CIs)
Effects Of Ideological Intensity

47

Table 1.3
Minority Opinions Authored Between 1980-2010 Terms

Author Judge
Total Minority Opinions
Authored
Total Strategic Minority
Opinions Authored
Alito
68 32
Blackmun
328 157
Brennan
324 199
Breyer
254 128
Burger
83 39
Ginsburg
191 80
Kagan
3 0
Kennedy
243 120
Marshall
242 155
O’Connor
349 173
Powell
146 65
Rehnquist
248 101
Roberts
36 9
Scalia
523 268
Sotomayor
23 9
Souter
206 82
Stevens
943 378
Stewart
21 5
Thomas
293 155
White
228 78

48

.35 .4 .45 .5 .55
Probability of Minority Opinion Strategy
Conservative Liberal
White
Thomas
Stewart
Souter
Scalia
Roberts
Rehnquist
Powell
O'Connor
Kennedy
Burger
Alito
White
Stevens
Souter
Sotomayor
O'Connor
Marshall
Kagan
Ginsburg
Breyer
Brennan
Blackmun
Figure 1.4 Probability of Strategy per Justice

49
1.10. Appendix B: Alternative Models
To check if minimum majority coalitions affect the practice of strategic minority opinions based
on the type of the opinion and the bargaining considerations these raise as some literature suggests, I
split the N of observations and estimate two supplementary models to see whether Minority Votes
reaches significance. Results are displayed in Table 1A below:

Table 1A- Supplementary Models
Model 2A
(Dissents)
Model 2B
(Concurrences)
Independent Variables Strategic Status coefficients
Author Ideology
.126 (.175) .644*** (.202)
Authors Ideology Distance
.24* (.124) .074 (.16)
Vagueness
.149* (.11) .29** (.161)
Percent Activism
.024** (.008) .023** (.011)
Minority Votes
.052* (.036) -.054* (.037)
Strategic Minority Opinion Count
.241*** (.069) .125** (.073)
Minority Opinion Count
-.067* (.049) -.022 (.063)
Caseload
-.001 (.001) -.006*** (.001)
Median Ideology
.021 (.554) -1.748** (.69)
Tenure Length
.01* (.005) .003 (.006)
Constant
-4.687*** (.77) -4.343*** (1.089)
N
2819 1933
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Tenure Length and Median Justice)

In Model 2A, covering dissenting opinions only, Minority Votes barely reaches significance at the
0.1 level moving in the expected positive direction, so as the number of minority opinion rises, so
does the probability of strategically dissenting. The ideology of the minority opinion author is not

50
significant, but the distance between that author and that of the majority opinion barely reaches
significance at the 0.1 level in the expected positive direction, which means that as that distance
increases so does the probability of strategically dissenting. Vagueness and Percent Activism remain
significant, as in the general model, with Vagueness at the 0.1 level and Percent Activism at 0.05. In
simpler terms, as vagueness and activism increase, so does the probability for strategic dissents. The
existence of other strategic dissents poses a strong relationship with a tendency to further
strategically dissent, but the existence of other minority opinions in general moves in the opposite
than expected direction with more minority opinions leading to less strategic dissents. The later
relationship, however is significant at the 0.1 level, which implies this may be the effect of fewer
observations. The volume of the caseload and the median ideology of the Court are not significant
here.
Model 2B comes with some important differences in the results; first of all, the ideology of the
minority opinion author is highly significant at the 0.01 level, with conservative justices issuing more
strategic concurrences, but the distance between minority opinion authors and majority ones plays
no role here, which seems to point to Wahlbeck et al.’s (1999) argument of dissents being
ideologically driven to a large extent. Interestingly, this is the only model that shows a meaningful
relationship between Median Ideology and strategic action. As the Court swings more conservatively,
the justices’ probability for strategically concurring decreases, but this result is explained via the
Author Ideology variable and does not move our understanding further. If conservative justices are the
ones more strategically concurring, then they have no reason to do so when the spirit of the Court is
on their side. Vagueness, Percent Activism, and Strategic Minority Opinion Count remain all significant at
the 0.05 level moving in the expected positive direction, as in the main model. This means that one
unit increase in activism, presence of vagueness claims, and presence of a single strategic minority
opinion in the same case all increase the probability for strategic concurrences.

51
On the issue of minimum majority coalitions, here Minority Votes is significant at the 0.1 level
moving in a negative direction, the opposite of what the dissent model showed, but equally not as
powerful. The large room for error that these two relationships display may signify the need for
more observations, but at the 0.1 level at least, the relevant literature on when justices concur and
when they dissent strategically is weakly corroborated.
Finally, the presence of other minority opinions and the length of tenure on the bench pose no
significant relationship in this model, but Caseload is statistically significant at the 0.01 level, with
increases in the number of cases reviewed each term leading to fewer strategic concurrences, much
like in the main model. Because the supplementary models feature almost half the number of
observations each, thus losing in variance and explanatory power, their results should be cautiously
reviewed.

52
Model 1C
Logistic Regression with Fixed Effects for Justices

Independent Variables

Strategic Status coefficients
Vagueness .179** (.09)
Minority Votes .004 (.025)
Strategic Minority Opinion Count .197*** (.05)
Minority Opinion Count -.056 (.038)
Opinion Type .031 (.076)
Caseload -.007*** (.001)
Constant -3.875*** (.776)
N 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Opinion
Type).

The justice fixed-effects logit Model 1C confirms that variables independent of the justices’
personal characteristics pose a significant relationship to the choice of authoring a strategic minority
opinion versus a non-strategic one. Proclaimed vagueness of the doctrine is linked to strategically
dissenting and concurring, the presence of more strategic minority opinions in one case increases the
likelihood for more strategic minority opinions, whereas as the Supreme Court’s caseload burgeons,
the tendency to author strategic minority opinions decreases, as they require more time and effort
from the part of the justices.

53
Chapter 2.
Judicialization and the Role of Political Context in Strategic Dissents and
Concurrences.

2.1. The Case for Strategic Minority Opinions in a(n) (Un)Cooperative Environment
A student of U.S. judicial practices would not normally expect that a purely judicial tool, such
as minority opinions, whose configuration does not lie on legislative discretion, could be connected
to extra-branch occurrences. The example of how the Federal Tort Claims Act has been interpreted
and how it was shaped, however, reveals that such connections are possible.
In the spring of 1988, the Subcommittee on Administrative Law and Governmental Relations,
part of the House Judiciary Committee, considered and heard testimonies for three separate bills
21

that would amend the Federal Tort Claims Act, so as to address the complex problems that had
arisen through the course of developing public-private contractual relationships, novel technology
and its marketization, and due to the U.S. Supreme Court’s attempts at doctrinal framing of those
scarcely codified interactions. During the questioning phase of the session, the Chair of the
Subcommittee, Rep. Barney Frank (D-MA), reassured various witnesses that it had been not only
his, but many of his colleagues’ too, long-standing goal to address via legislative measures the
challenges stemming from the ambiguity of the “discretionary function exemption”. The FTCA
clause had been used by successive administrations and their agencies as a blanket defense for
immunity against tort claims by citizens suing the federal government, thereby effectively nullifying
the Act’s objectives to a large degree. The discretionary function exemption bars any claim against
the United States that is “based upon the exercise or performance or the failure to exercise or

21
H.R. 4358, "Federal Employees Liability Reform and Tort Compensation Act of 1988”,
H.R. 3872, “Modification of the Discretionary Function Exception to the Federal Tort Claims Act”, and
H.R. 3083, "Tort Liability Reform Act of 1987".

54
perform a discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused”.
22

The three bills addressed respectively the overbroad use of the discretionary function
exemption, the openness to governmental employee liability incurred by then recent Supreme Court
decision in Westfall v. Erwin, 484 U.S. 292 (1988), and the need for some legislators to establish
financial limitations and procedures in federal tort claims cases.
23
Out of that hearing, despite broad
support in the testimonies for all three bills and the otherwise sincere backing by Rep. Frank and the
other subcommittee members, the only bill
24
that made it out alive and reached the full committee
for consideration was the one shielding federal employees from all suits not arising under the FTCA
framework, an amendment that essentially restored the pre-Westfall status quo but did not resolve
any further tangible complications.
One out of three bills addressing the same problematic area being enacted into law initially
seems to reflect effective and responsive governance, if one takes into consideration that during the
late 1980s less than 7% of all bills introduced would be enacted into law.
25
However, this becomes a
considerably less positive story of legislative effectiveness when seen from the perspective of the
judiciary. Only a few weeks after the subcommittee hearing and a few months before the enactment
of the final bill in November of that year, the Supreme Court issued its decision in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988), a case that in the following decades would lead to significant
expansion of the discretionary function exemption regarding immunity for government contractors

22
28 U.S.C. § 2680(a).
23
“Hearing Before the Subcommittee on Administrative Law and Governmental Relations of the Committee on
the Judiciary House of Representatives, One Hundredth Congress- Second Session on H.R. 4358, H.R. 3872, and
H.R. 3083 Legislation to Amend the Federal Tort Claims Act, April 14, 1988, Serial No. 55, see p. 31.
24
House of Representative Bill 4612, as enacted, was heavily formulated on the basis of H.R. 4358 and provides
that “the exclusive remedy for common law torts committed by federal employees within the scope of their
employment is through an action against the United States under the Federal Tort Claims Act”. Federal Employees
Liability Reform and Tort Compensation Act of 1988, (b) Purpose.
25
Statistics and historical comparisons for all bills by final status available from govtrack.us.

55
due to the vagueness imbued in the judicial response proffered by majority opinion author, Justice
Scalia (Rakowsky 2006). The Boyle decision basically indicated to Congress that in the face of lack of
legislative measures resolving, on one hand, the problem of government contractors under FTCA
and on the other, the overbroad usage of the discretionary function exemption, it would fashion its
own framework for case-by-case solutions to the thousands of federal liability suits initiated in
district courts each year,
26
thereby furthering the legislative strategy of silence on this issue.
However, that was not the only message Congress was a recipient of via Boyle; in one of the
dissents, Justice Brennan cited different caselaw from the single case the majority opinion relied on
and went on to address Congress directly:
“Even granting the Court's factual premise, which is by no means self-evident, the
Court cites no authority for the proposition that burdens imposed on Government
contractors, but passed on to the Government, burden the Government in a way that
justifies extension of its immunity. However substantial such indirect burdens may be,
we have held in other contexts that they are legally irrelevant. See, e. g., South
Carolina v. Baker, 485 U.S. 505, 521 (1988), our cases have "completely foreclosed any
claim that the nondiscriminatory imposition of costs on private entities that pass them
on to . . . the Federal Government unconstitutionally burdens . . . federal functions"…
It is, after all, Congress, not this Court or the other federal courts, that is the custodian
of the national purse. By the same token Congress is the primary and most often the
exclusive arbiter of federal fiscal affairs. And these comprehend, as we have said,
securing the treasury or the Government against financial losses however inflicted… Ibid.
See also Gilman, supra, at 510-512. If Congress shared the Court's assumptions and
conclusion it could readily enact "A BILL to place limitations on the civil liability of
government contractors to ensure that such liability does not impede the ability of the
United States to procure necessary goods and services," H. R. 4765, 99th Cong., 2d
Sess. (1986); see also S. 2441, 99th Cong., 2d Sess. (1986). It has not. Were I a legislator,
I would probably vote against any law absolving multibillion dollar private enterprises
from answering for their tragic mistakes, at least if that law were justified by no more
than the unsupported speculation that their liability might ultimately burden the United
States Treasury.”

In other words, Justice Brennan in this case engaged in strategic dissenting by offering a legal
basis for his position which was not discussed or considered by the majority opinion and in doing

26
Statistics on civil suits per issue filed in U.S. District Courts each term provided by the Administrative Office of
the U.S. Courts on behalf of the Federal Judiciary (uscourts.gov).

56
so, openly targeted Congress as the recipient of his signal. It is the goal of this chapter to elucidate
how the practice of strategic minority opinions is not confined to considerations of intra-
institutional behavior and prospects for advancing one’s preferences in that level only; rather the
practice is also part of a dialogue within the various levels of the judiciary and the other
governmental branches. Most importantly, strategically dissenting and concurring takes place within
an institutional environment that supports the theory of judicialization of political demands. If the
above glimpse in some of the history of the Federal Tort Claims Act and the attempts at amending it
was recounted through the lens of judicialization theory, Justice Brennan’s appeal would not seem so
extraordinary or rare. This particular episode reveals a policy-making environment where justices’
policy preferences and the various attempts at furthering them are not out of touch with inter-
institutional dynamics. In this case, the minority opinion author was faced with Congress overruling
prior attempts to a partial solution through the Court’s Westfall decision and the reality of the former
not moving forward with the relevant bills that would address gaps in legislation,
27
at which point
the decision to call out Congress and the private companies lobbying it for refusing to specify the
immunity status of private companies was deemed a suitable action.
In the previous chapter, the nature of strategic minority opinions was defined, and the focus
was on the behavioral and intra-court characteristics; the “who and why” a justice would strategically
dissent or concur. This chapter turns the attention instead onto the “when and why”, i.e. the broader
political configurations and context that affect the phenomenon of strategic minority opinions and
within which this practice takes place.

27
In a different part of his dissenting opinion in Boyle, after specifying the alternative caselaw on which the decision
could be based to produce the opposite outcome, Justice Brennan listed all then recent bills attempting to better
define the discretionary function exemption and the liability status of private contractors that had been introduced
but failed to be enacted into law, not counting the most recent 100th Congress: H.R. 3872; H.R. 4765, 99th Cong.,
2d Sess. (1986) (limitations civil liability of Government contractors); S. 2441, 99th Cong., 2d Sess. (1986) (same).
See also H.R. 2378, 100th Cong., 1st Sess. (1987) (indemnification of civil liability for Government contractors);
H.R. 5883, 98th Cong., 2d Sess. (1984) (same); H.R. 1504, 97th Cong., 1
st
Sess. (1981) (same); H.R. 5351, 96th
Cong., 1st Sess. (1979) (same).

57
2.2. Theoretical Overview
Judges are strategic actors even when they are on the losing side of an argument; the study of
strategic minority opinions displays how judges can promote their preferences in a prima facie
adverse environment and this was explored in the first chapter of this manuscript. Strategic
concurrences and dissents offer a previously non-considered by the majority but reasoned guide to
future litigation or encourage specific action in the elected branches, while possessing a clear
recipient for their message. They incite discussion of different interpretations, tests, areas of law, or
caselaw and raise considerations which have not been addressed by the majority, i.e. have not already
been discussed and rejected. It has been theorized in the previous chapter that the author of the
strategic minority opinion manages to broaden the dialogue among judges and between judges and
the public, work towards changing the legal discourse, and/or provide tools for legal change. As a
result, the author increases her potential for judicial policy-making, while at the same time respecting
the rules of the collegial game and acknowledging the limitations of this tactic due to institutional
constraints.
Strategic minority opinions, therefore embrace two functions which are not mutually exclusive;
they widen the possibility for promoting one’s preferences and they aim at finding solutions by offering
new tools and tactics to recipients of their message. This practice does not exist in an institutional
vacuum; the theory of judicialization posits an explanatory path that elucidates at least some of the
institutional reasons behind this practice, as well as its effects towards an altered doctrinal framework.
The process of judicialization- “the ever-accelerating reliance on courts and judicial means for
addressing core moral predicaments, public policy questions, and political controversies”, as Hirschl
(2008: 94) describes it- brings into the forefront the need to look into the strategic behavior of political
and societal actors along with the institutions that give birth to and reinforce this phenomenon.
Strategic minority opinions, in large part, aim towards the continuation of litigation, but because of

58
its very nature, litigation is a method of dispute resolution that proliferates among actors (Shapiro and
Stone Sweet 2002). Because the practice of strategic minority opinions lies so close to the essence of
judicialization, we must apply the behavioral-institutional traversing logic of judicialization to their
study and examine the context within which such opinions arise, i.e. the institutional factors that
interact with the personal tendencies of the justices and may aid the presence of strategic minority
opinions as a rule-changing tool.
Judicialization is a process sustained by the interdependence of rule-making bodies and their
audiences, and of strategic behavior (Stone Sweet 1999). It is a theory that allows for the construction
of observable, measurable implications that evaluate behavior and effects both on the micro-level (e.g.
between judges) and on the macro-level (the development of norms across institutional actors).
Disputes in the United States are resolved in a highly judicialized environment; because legislators, the
primary issue-resolvers, face pressure from multiple fronts (Eskridge 1991, Graber 1993, Lovell 2003,
Lowi 1979), the quality of political solutions given is not always optimal, while even gaining access to
these actors is highly problematic given the cost of lobbying, the difficulty of organizing special
interests that translate into votes, etc. Many grievances are left unresolved, which propels actors to
seek redress from the other, tacitly acknowledged as such, policy-making bodies; the courts. Through
litigation, actors openly ask courts to proffer an opinion in non-purely judicial matters and resolve
political failures, i.e. important issues that the elected branches could not or were disinclined to solve.
Gradually, actors learn to frame grievances in legalistic terms that strengthen participants’ view of the
courts as an appropriate and effective forum for attaining desired policy outcomes (Silverstein 2009).
Stone Sweet (1999) further shows how the judicialization of politics is a result of the “enhanced”
triadic dispute resolution process,
28
whose law-making capabilities progressively shape the strategic

28
“The theory asserts that Triadic Dispute Resolution (here on TDR) organizes political change so as to facilitate
the survival of societies in which individuals interact with each other on a continuous basis. The theory predicts
that as the scope and intensity of these interactions increase, so will the demand for the adaptation of normative

59
behavior of political actors engaged in interactions with one another. Litigation possesses educational
properties and as an iterative game produces more positive results at decreasing costs for participants,
which strengthens its path dependent nature. Regular litigants (and repeat-players) easily gain trial
strategy sophistication once they start navigating the court hallways. The idea of path dependence
(Pierson 2000), therefore is strongly linked to litigation, because once the shift in forum from
legislative to court chambers occurs, it becomes more and more counter-intuitive for participants to
return to more traditional regulatory solutions and face anew the obstacles these possess, while waves
of subsequent similar litigation provide increasing returns.
In practical terms, strategic minority opinions find a home within the theory of judicialization,
because they attempt to reconstruct the nature of governance. Strategic minority opinions generally
call for more triadic dispute resolution by inviting litigation on the basis of new terms or norms
thereby changing existing ones, and less often send a message to the traditional political branches, so
that the latter address the reasons behind the already existing litigation. In the previous chapter, the
idea of activist vs. restraintist justices was presented and situated within the practice of strategic
minority opinions; in a similar vein, justices on the U.S. Supreme Court often deem that a solution
given by the courts would be preferable by signaling colleagues and litigants and thus activating
litigation in the lower courts.
29
Alternatively, justices alert the legislative and executive branches of the
problem that is causing the litigation before them and invite the latter to address the causes of dispute.
This is a particular fitting role for strategic minority opinions, since prior literature has demonstrated

structure by way of dispute resolution. If and when dyadic dispute resolution fails to satisfy this demand, there will
be pressure to use TDR if a triadic mechanism exists, or to invent such a mechanism if it does not exist. Once
individuals have moved to the triadic level, the internal dynamics of TDR will drive processes of judicialization.
The dispute resolver will seek to balance the competing claims of disputants but will also generate precedent to
legitimize decisions. Triadic rule making will gradually reconfigure normative structure and, in so doing,
reconstruct social relations (Stone Sweet 1999: 164).
29
Theoretically, the justices could expect to see the signaled norms or doctrines back on the Supreme Court’s
docket within time, however, the reality of the Court’s decreasing and already very light caseload means that most
issues and disputes will be resolved in the District and Circuit Courts of the country.

60
how the Court’s majority decisions, while promoting the justices’ preferences, generally sway with each
administration’s or Congress’s preferences, so as to avoid having decisions overridden or reprisals
undertaken on an institutional basis, such as declining to increase judicial salaries or stripping away
jurisdiction (Baum and Hausegger 2004, Epstein et al. 2001, Eskridge 1991, Segal and Spaeth 2002).
But prior research has also shown that justices do not uniformly behave with relative deference to the
elected branches because predicting Congress’s overriding point is quite difficult and the cost of
overriding itself is not as significant as is usually depicted compared to promoting one’s policy
preferences (Cross 1998, Segal 1997). The authors of strategic minority opinions, therefore, regularly
find themselves not only in the minority of the Court, but in opposition or disapproval of the way
the elected branches have been tackling political disputes and attempt to reshape discourse through
the signals contained in the opinions they author. These signals can take the character of
encouragement of further litigation or providing suggestions to political powerholders. Strategic
minority opinions are termed strategic because they include specific, solid suggestions for a course of
action; they are not abstract pleas for action.
That the actors on the land’s highest Court embrace the process of judicialization because
framing political demands as legal disputes comes naturally and affords them a heightened role in
society via promoting their preferences is only one side of this process. Judicialization restructures
governance because there is a shift from legislative/democratic dispute resolution to triadic dispute
resolution/litigation. Expectations for solutions lie more within the courts as they make new policy
by addressing singular societal categories and small groups, than with legislative bodies, which offer
more encompassing outcomes. It is important to note that there is not an inherent drive in societies
or specific political systems towards judicialization; rather it is a process that is consciously
promoted by powerholders’ decisions (Lovell 2003) and could be reversed at any point. This much
is clearly illustrated in the history of FTCA as well, when legislators had the opportunity to curb

61
litigation on demands for tort compensation, but instead chose to restore the prior vague legal status
quo. This decision was followed by a small and steady increase in FTCA lawsuits in the immediate
years (from 3,939 FTCA lawsuits filed in 1987 to 4,346 during the 1991 term),
30
but Circuit Court
decisions following the Boyle doctrine and general congressional pronouncements in those
subsequent years expanded immunity for government contractors, therefore either keeping the
numbers of FTCA suits at the same level or marginally depressing attempts at claiming
compensation from the federal government and its contractors. In this case, where Congress
declined to offer a solution, the Supreme Court stepped in and interpreted the relevant doctrine in a
fashion that aided one side of the conflict, as made apparent by subsequent decisions.
31

Strategic minority opinions may reinforce the phenomenon of judicialization, but that is only
one side of the same coin. As demonstrated from the brief moment in FTCA’s history recounted
above, this relationship can be bidirectional; they are also themselves a practice promoted by
judicialization. The common assumption that policy-making through the opinions of unelected
judges violates the democratic process has long been abandoned by empirical research on the
complex relationship between legislators and courts; such studies highlight the dialogue that is taking
place between them. But the courts do not simply step in to fill legislative voids; on the contrary
they are actively invited to this dialogue by elected policy-makers and especially “justices on the U.S.
Supreme Court have been particularly receptive to this dialogue when they share the values of the
elite or presidential dominant national coalition” (Graber 1993:37). Judges have to, therefore, settle
interpretative controversies in many cases largely because legislators were unable or unwilling to

30
The number of suits filed in U.S. District Courts per year and area of litigation is available at
https://www.justice.gov/usao/resources/annual-statistical-reports.
31
Boyle’s vague grant of immunity was expanded both vertically and horizontally soon after it was decided in In re
Joint E. & S. Dist. N.Y. Asbestos Litigation 897 F2d 626 (1990), where the Second Circuit followed the Fifth Circuit
and other federal courts in being among the first to extend government contractor liability to “failure-to-warn”
claims, in Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992), in Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th
Cir. 1995), and in Carley v. Wheeled Coach, 991 F.2d 1117 (3rd Cir. 1993) among others (Levin 2004).

62
establish a consensus on a particular policy outcome (Lovell 2003). This unwillingness or inability is
measurable via the cooperativeness (or lack thereof) among the elected branches, in the number of
bills enacted per congressional term that address problems, and in the vagueness or clarity of the
statutes among others (Maltzman and Shipan 2012, 2008).
In the era of gridlock, inability to garner legislative majorities or the presence of partisan
divisions in government result in inability to offer answers to pressing problems. Even within the
same partisan coalition, different interests and goals guide the behavior of legislative members -be it
constituency reasons (Cox and McCubbins 2005, Fenno 1978, Mayhew 1974) or personal interests
(Peterson and Grose 2016)- and reaching out to the other side of the aisle for support, apart from
tough to achieve, risks alienating those that are already supportive of a measure. Elected
representatives constantly face dilemmas over which interests to pursue, as the supply of conflicting
demands never stops. Instead of coming up with solutions that are bound to alienate some or incur
risk of political accountability and non-reelection, elected representatives often prefer to “pass the
buck” to the branch that does not face electoral accountability. Alternatively, in an effort to forge
broad coalitions supporting the proposed policies so as to appear responsive to their constituents,
legislators deliberately pass ambiguous legislation, that calls for privatized enforcement solutions
offered in a court room or through a system of settlements (Farhang 2010, 2009). While statutory
law and its explicitness is only one factor that may enhance or obstruct the tendency to resort to the
courts, in the case of the United States, the constitutional type and common law system also
promote an environment where professional litigators enjoy a central, active role, the legal
consciousness of litigants is highly developed, and the sociopolitical system treats most conflicts on
the basis of rights, thus enforcing a legalistic perception of issues and building a closer bridge to the
courts (Farhang 2010, Kagan 2001). Kagan (2001) argues that the fragmented nature of the U.S.
state structure due to the checks-and-balances system and the dispersion of decision-making

63
authority across all three branches promotes a state of “adversarial legalism”; a state that tries to
satisfy public demands without possessing much administrative clout to do so, thus allowing for a
prominent role of the courts to make the necessary decisions. Burke (2002) emphasizes that the
same structures of decentralized and fragmented decision-making incentivize interest groups and
policy-makers to enact legislation that outright defers to the courts for enforcement, or de facto
encourages implementation by the courts, rather than through bureaucratic means.
This chapter situates the tendency on the U.S. Supreme Court to strategize through minority
opinions in the theory of judicialization, both as a practice encouraged by the properties of a
judicialized political environment and as a practice reinforcing such environments.

2.3. Hypotheses
The theory of judicialization posits certain relationships between sociopolitical actors and
institutions that are observable and inform the testing of a number of hypotheses in this chapter.
Looking at the institutional environment that may aid in the practice of strategically dissenting and
concurring on the U.S. Supreme Court, I argue that specific conditions in the inter-institutional
environment foster this practice; specifically, a divided Congress and/or divided government during
the term that a case is decided is more likely to inspire strategy among the justices of the Court who
are on the minority (Ginsburg and Kagan 2005, Jacobson 2003, Melnick 2004, Smith 2005).
Ideological discord in the legislative and between the legislative and executive branches, for example,
is closely associated with the enactment of private enforcement regimes (Farhang 2012, 2008),
regimes that encourage political participants to turn to litigation by securing larger rewards for
winners, relaxing burden-of-proof standards, or off-setting litigation costs for specific suits. When
legislative chambers or the elected branches ideologically diverge, efforts to affect public policy and
address regular grievances shift towards the courts, thus allowing for more involvement from judges,

64
and especially those sitting on the Supreme Court who receive the most attention. More attention
means a larger audience to be had for justices found on the minority of a legal debate, who will
attempt to influence public policy and future litigation via signaling concrete strategies and
argumentation. As such, the first two hypotheses hold that:
Hypothesis 1: The probability for strategic minority opinions will increase in times of divided government (executive-
legislative).

Hypothesis 2: The probability for strategic minority opinions will increase in times of divided control of the legislative
chambers (House-Senate).

The above expectations in terms of ideological divergence within and among the legislative
and executive bodies imply certain conditions that promote the judicialization of political demands.
Explicitly, a divided government is expected to produce fewer pieces of legislation, since actors
would have to compromise extensively to sign on bills that are supported by differing ideological
factions. During the 1988 FTCA debate, a divided government (Republican Presidency - Democratic
Congress) acted as an at least partial deterrent for the passing of a bill that would unambiguously
address the immunity status of government contractors or clarify/repeal the overbroad discretionary
function. Policy inertia, therefore, is hypothesized to be followed by more strategic minority
opinions, in an effort from the minority justices to either address disputes that fall on the courts to
resolve or incentivize elected power-holders to do so by equipping them with a potential pathway,
by countering, weakening, or expanding the majority coalition’s decisions. For example, in the Boyle
case, where Justice Brennan plead to Congress to end its inaction and settle FTCA’s silence on the
liability status of government contractors, the majority coalition represented by Justice Scalia did the
opposite by proffering a decision that reinforced the vagueness of the statute and promoted case-by-
case considerations, while still allowing for the most lenience to government contractors. While one
could argue that fewer pieces of legislation could also depress the number of new suits arising
because new statutes may create new rights and new demands to be settled in the courts, experience

65
shows that pre-existing disputes push demands for legislation (Barnes 2011, Farhang 2012), and
depending on the legislative response and its quality (definitive, detailed legislation would decrease
the number of court disputes, and legislation that creates private enforcement regimes would either
increase or keep the volume of litigation steady), disputes are satisfied to a greater or smaller extent,
thus giving significant rise to new grievances or keeping that number balanced.
Additional institutional factors that affect the practice of strategic minority opinions include
the characteristics of legislation. Prior literature explains how narrowly tailored legislation robs
courts of their ability to reshape the law, but vague legislation offers more opportunities for
interested parties to seek clarification over ambiguities regarding the implementation of the law.
Coalitions that arise through cross-cutting interests and divided parties produce laws that may be
intentionally designed as vague and ambiguous, triggering the reshaping into their final image in the
courts. This offers policy-minded judges the opportunity to pursue their preferred outcomes, while
clearing the path to the courtroom for affected groups and those who are tasked with the
implementation of the law (Crespi 2000, Mayhew 2005, Melnick 1994, Shipan 1997, Smith 2006).
Justices who issue strategic minority opinions perceive the majority opinions in these cases as
perpetuating the “sinful” properties of these laws and the legislative coalitions that gave birth to
them, thus seizing the chance to promote future interpretations of the law or asking the legislature
to act. This chain of events becomes far simpler when it is constitutional provisions that need to be
applied or interpreted vis-à-vis specific instances and not statutes; it is Supreme Court justices who
have to interpret the Constitution to begin with, with the latter’s clauses being particularly short,
vague, and ambiguous, broadly allowing for justices’ policy preferences to shape constitutional
doctrine.

66
Under this light, the law’s characteristics mark an important factor not only for its longevity,
but for its prospects for interpretation, thereby restricting or amplifying judicial discretion based on
the amount of detail and policy-specific language it contains (Huber and Shipan 2002).
Hypothesis 3: Vague and ambiguous statutes or clauses increase the probability for strategic minority opinions on the
U.S. Supreme Court.

Hypothesis 4: Longer statutes and clauses, which contain more detail, decrease the probability for strategic dissents and
concurrences.

Moreover, inter-institutional factors account for direct relationships between decision-makers.
In answering the question of how judges behave when they disagree with legislators, the span of
prior research from elite theory (Dahl 1957, Spann 1993) and new institutionalist approaches
(McCann 1999) to rational choice accounts (Epstein and Knight 1998) has provided us with ample
evidence that in the majority of times the U.S. Supreme Court defers or follows the wishes of the
elected branches, be it due to judges and legislators originating from the same elite environment or
due to a mindfulness for deterring legislative backlash. If the Court’s decisions align regularly with
the preferences of the elected branches because justices are either similarly politically situated or
come from the same ranks politicians do or wish to avoid measures that would hurt their personal
and institutional interests, then minority opinions will regularly contradict those interests for the sake
of different policy and doctrinal preferences. Strategic dissents and concurrences become a more
popular practice when the elected branches move further away ideologically from the authors of
these minority opinions. They pose a strategic move to pull policy-makers back towards more
preferable policy outcomes by sounding an alarm and revealing legislative and executive
mishandlings and inadequacies, or by attempting to guide litigants and other judges so that the fight
is displaced from the legislative to the judicial arena, with litigants either bringing more cases that
can shape the law or signaling other judges of more desirable outcomes.

67
Strategic minority opinions consider the institutional environment they are born of; how can a
judge on the losing side of an argument still promote her preferences? When competition for policy
expands from inside court chambers to the legislative/executive arena, strategy will target those that
are further away from the strategist’s preferences in an effort to convince, otherwise the strategic
justice would bypass the cost of authoring a minority opinion and rely on the legislative/executive
branches to carry out her preferred policy by enacting new statutes, amending old ones, overriding
Supreme Court decisions, or issuing executive orders in the case of the executive. Signaling close
ideological allies in the elected branches, while certainly could pose as a worthy tactic, is not as
imperative because the elected branches, and especially the relevant congressional committees, “do a
good job of monitoring Supreme Court decisions” (Eskridge 1991:415). At the very least, strategic
minority opinions would have to sound an alarm or put forth a persuasive argument towards the
executive, which can both promote legislation and has the power to veto a bill. A strategic justice,
therefore, must reach those pivotal members in the other branches with whose support she could
achieve getting the message across, but lie further away ideologically and policy-wise. The veto
players from the House and the Senate (Saeki 2009, Tsebelis 2002) are the individuals whose
preferences must be moved closer to the justice’s; in this case the House and Senate ideological
median members, since simple majorities are required in both branches to pass the vast majority of
legislation. Although it is usual to assume the sixtieth Senator as the pivotal member in that
chamber,
32
invoking cloture in the Senate has been a rather infrequent part of congressional
activity,
33
and regular cloture rules do not apply for all types of bills, hence opting for the Senate
median pivot in the model that follows. In the executive branch, the ultimate veto player is none

32
As a functional matter, often legislation in the Senate must be able to achieve a supermajority in order to
pass because of the filibuster rule, since it takes three-fifths of the Senate to invoke cloture and force a final
passage vote, making the sixtieth senator in a given direction the pivotal member.
33
For data and percentages of cloture motions and bills proposed/passed per congressional session, see
Ornstein et al., 2014, “Vital Statistics on Congress”, www.brookings.edu/vitalstats.

68
other than the president, so it becomes the authoring justice’s task to move them closer policy-wise.
The above considerations propel me to address the following hypotheses on ideological distances
between the authors of strategic minority opinions and key-players in the executive-legislative
branches:
Hypothesis 5: The probability for strategic minority opinions increases, as the ideological distance between the minority
opinion author and the House’s median member increases.

Hypothesis 6: The probability for strategic minority increases, as the ideological distance between the minority opinion
author and the Senate’s median member increases.

Hypothesis 7: The probability for strategic minority increases, as the ideological distance between the minority opinion
author and the incumbent President increases.

Furthermore, when one party of the suit facing the Supreme Court is governmental, then
justices have an immediate opportunity to engage an important counterpart in discussion. Strategic
dissents and concurrences, while not providing the basis for the issue’s resolution at that moment,
have the ability to stress problems with the majority’s rationale, hint at the limits of the majority’s
decision, or ask for more steps to be undertaken by the parties directly involved, therefore making
pleas for correcting errors to the body that is able to directly address issues and policy dilemmas fits
well with the intention of strategic minority authors to affect the outcome by any means they
possess.
Hypothesis 8: The probability for strategic minority opinions increases when one party of the suit is governmental
(federal/state/county/etc.).

The above hypotheses test those elements of a judicialized environment that precipitate the
practice of authoring strategic minority opinions. Nevertheless, because these opinions aim to
function as a policy-making tool, as explained above, they also encourage the judicialization of
political demands. Because most of strategic concurrences and dissents address fellow justices and
lower-court judges, or these colleagues along with one other target, be it litigants or elected power-
holders, justices incite a dialogue among their colleagues and signal to interested parties that new

69
cases in lower courts may fare better or pose better vehicles for reconsideration at the Supreme
court level. In this chapter, I put forth a preliminary test to see whether this occurs by looking at the
overall caseload of federal district courts one and two years after strategic minority opinions are
issued by their authors. During each term, roughly 4 out of 10 minority opinions that are published
are strategic. Because experienced litigants (see Galanter’s repeat-players, 1983) are vigilant with
regards to signals from justices, I expect that regardless of the legal area/issue, overall the presence
of new signals will inspire further litigation.
Hypothesis 9: Increase in signaled strategy on the land’s highest court leads to an increase of the district court caseload
in the years following, compared to publishing non-strategic minority opinions.

2.4. Data and Methods
To test the above hypotheses, first I constructed a novel database of all minority opinions by
Supreme Court justices published in the 1980-2010 terms, modeled after the Spaeth Supreme Court
Database (2013) (see also Chapter 1). This resulted in 4,753 minority opinions- 2,819 dissents and
1,934 concurrences with each row in the database representing one minority opinion. Through
close-reading content analysis, I collected and coded all minority opinions as to their strategic status;
0 for non-strategic and 1 for strategic
34
. This informs the first dependent variable of this chapter
featured in the first nine hypotheses, Strategic Status, as it also forms the first step in attempting to
understand the process of judicialization. The standards for awarding strategic status to a minority
opinion were discussed in the modeling portion of the previous chapter but are worth reiterating;
briefly, to be coded as strategic, an opinion “must proffer a standard, interpretation, test, or cite
caselaw that was not discussed or mentioned in the majority opinion and must also identify a
recipient”, with an added exception to this rule for when the justice explicitly said they would
overturn precedent and invited cases as a vehicle to do so.

34
The text of the full opinions was retrieved from Lexis Advanced.

70
To address the first eight hypotheses, I use logit regression and create a variety of new
variables, while also using some well-known measures developed by prior research. For the first two
hypotheses, I use Unified Government and Unified Congress as independent variables to operationalize
division in the elected branches. Unified Government is coded 1 when the same party holds both
Congress and the presidency, and 0 otherwise. Unified Congress is coded 1 when the same party
controls both chambers of Congress, and 0 otherwise.
To measure qualitative aspects of the law considered in each minority opinion, I created the
variable Vagueness, coded 1 for when the minority opinion author claims the law before her is vague
35

and 0 otherwise, whereas to measure the level of detail in the laws deliberated upon, the example of
Huber and Shipan (2002), who count the number of pages in each bill/statute to determine length
and therefore level of detail, was followed. While not a perfect measurement, the trade-off in
counting the length of legislation is that it poses a more objective measurement than for example
setting standards for vague language, which could vary from case to case and legal area to legal area.
While constitutional clauses feature language that is remarkably vague and poses the need to ground
almost every word in current understanding, statutory language does not follow the same
formulation and can be intentionally vague or quite precise (Van-Sickle Ward 2015). From the
Spaeth Database, I was able to identify the major law considered in each minority opinion and code
Legislation Length by counting the number of pages as featured on the United States Code, provided
by the Office of the Law Revision Counsel of the House of Representatives,
36
while the length of
constitutional clauses when cases involved constitutional interpretation rather than statutory, was
standardized at 0.5 pages.
37
Thus, the values of the variable range from 0.5 pages to over 3,837,

35
To afford vagueness status, the justice needs to mention one of these words in relation to the statute or
law: vague, abstract, ambiguous, confusing or confusion, unclear-not clear, lacks clarity, obscure, uncertain,
imprecise (language), and their derivatives.
36
See uscode.house.gov.
37
The vast majority of constitutional provisions ranging from clauses to amendments only number a few lines. In
order to promote coding consistency with their statutory counterparts, the choice was made to standardize the

71
denoting significant differences in the array of policy implementation instructions. Coding the
specific statute or clause entailed in the minority opinions, instead of the number of pages of the
relevant public laws and bills, offers the advantage of avoiding inserting bias into the variable due to
lengthy, non-specific omnibus bills.
38

For the next set of hypotheses, I measure the absolute distance between the ideological point
of the author of the minority opinion and the ideological point of the House median, Senate median,
and incumbent President to create House-Author Distance, Senate-Author Distance, and President-Author
Distance respectively. For the House and Senate, as well as all justices of the U.S. Supreme Court, I
employ the ideology scores of the Judicial Common Space project (JCS) to identify the ideological
tendencies of key players during the term each minority opinion was authored. The scores range
from -1 being the most liberal, to 1 being the most conservative. Regarding incumbent presidential
ideology-point estimates, I use DW-Nominate scores, which predate and serve as the template for
the Judicial Common Space estimates.
Finally, for this model and to test the next hypothesis, the dummy variable Government Litigant
was created, coded 1 if at least one of the parties to the suit is governmental (federal commissions,
departments, officials, the U.S., local, county, and state units, etc.) and 0 if both parties are private
litigants.
Similarly, I include certain control variables to check for the influence they may have on
strategically dissenting and concurring, such as the incumbent President’s party at the time the
minority opinion was issued, since prior research suggests that Republican administrations promote
private enforcement regimes, such as litigation, therefore one could reasonably expect more strategic

value for this variable at 0.5 pages for any opinion (row) designating constitutional provisions as the legal issue in
question.
38
The natural log of the number of pages of statutes was also taken instead of the true number, but the
alternative version model features only a couple minute differences, which do not indicate different
relationships or directions.

72
minority opinions with a Republican executive (Farhang 2012). Therefore, Incumbent President is
coded 1 if the president is Republican and 0 if the president is a Democrat. Additionally, because the
standard by which the variable Divided Congress is coded forces some lack of nuance, from the JCS
database I estimate the absolute distance between the ideological median member of the House and
that of the Senate, and control for the effect of House-Senate Distance. Following the expectations set
above, a larger difference between the ideological points of those pivotal members should be
followed by an increase in strategic minority opinions. Similarly, I run an additional check on the
hypothesized consequences of legislative inertia by including the true number of laws enacted in
each congressional term
39
which corresponds to the Supreme Court term when each minority
opinion was published.
40
I expect the Bills Volume variable to show that the probability of strategic
minority opinions increases as the volume of definitive legislative action decreases.
A final control point in the model accounts for changes in the overall caseload of the U.S.
Supreme Court, the U.S. Circuits, and the U.S. District courts. In the previous chapter, it was shown
that as the Supreme Court’s caseload decreases, strategy on the Court increases based on the
proposition that justices have more time to dedicate to each case when they are confronted with
fewer overall. A signaling opinion containing new strategy requires considerably more time and
effort to prepare and opinions of higher quality, such as these, cannot be produced at the same rate
as standard minority opinions that only focus on and analyze the doctrinal or statutory points the
majority has laid out. More cases in the federal district courts allow for more cases to continue on to
the federal circuits, therefore it is reasonable to expect such caseload surges will also incur an
increased number of petitions to the Supreme Court, pressuring it to grant more writs of certiorari.

39
Data on the number of bills proposed, amended, enacted, etc. during each congressional term can be found
on govtrack.us.
40
I also calculate the ratio of bills enacted to those proposed during each congressional term as a robustness
check, but the alternative model features practically no differences.

73
On the other hand, if boosts to the federal courts’ caseload are due to the lack of solutions
promulgated in the usual arenas of political life, then the practice of strategic minority opinions
could also intensify. The numbers for the various caseloads across the three levels of federal courts
that make up the respective variables are borrowed from the United States Courts Database
(uscourts.gov) and the United States Department of Justice (www.justice.gov). Overall, because the
model tests eight different hypotheses, I adjust the p-value of significance to 0.025, half of the usual
0.05, based on the Bonferroni multiple testing correction. This means that the standards set for
rejecting the null hypothesis based on p-values are tougher to pass.
To analyze the potential effect of Supreme Court strategy via minority opinions on the federal
district courts caseload, I estimate two OLS models
41
; one for the caseload initiated one year after
each Supreme Court term and another for the caseload initiated two years after each term. In both
models, the unit of analysis is the number of cases filed in U.S. District Courts in a specific term
(District Caseload-1 and District Caseload-2) and the main explanatory variable is the percentage of
strategic minority opinions from the totality of minority opinions authored one and two terms
before, labeled Strategy Per Term. The percentage scores of strategic minority opinions are used,
instead of a count variable, to ensure that more recent Supreme Court terms which feature fewer
cases overall and thus fewer minority opinions, do not insert bias to the variable. While this is a
broad expectation, an effect of strategy via minority opinions on the overall caseload of the
following years is not out of the question,
42
and if the model indeed finds that generalized effects
exist, then uncovering specific effects per issue or district could be a fruitful future research avenue.

41
Because the caseload for the federal district courts is in essence a count variable, albeit one that takes large
positive values, I alternatively estimate two Poisson models which produce near-identical results to the OLS
models. The alternative models are featured in the Appendix.
42
This expectation is formulated both on the basis of what kind of phenomena are predicted to take place in
a judicialized environment and on the basis of information gathered through interviews with attorneys who
litigate in federal district and circuit courts when questioned about litigant strategy. See Chapter 3, “Part 3.5.
Data, Methods, and Measurements.”

74
Informed by similar expectations as in the hypotheses stated above, I employ a number of
control variables in both models to account for other factors or characteristics of the legislative
environment that may affect caseloads for district courts based on the theory of judicialization, such
as whether prior to the caseload filed there was Divided Government, which usually leads to fewer laws
passed, which could have a budding effect on new cases filed in federal district court. Moreover, an
increased ideological distance between the pivotal members of the two legislative chambers can also
lead to more disputes finding their way into the courts instead of congressional hearings, so I
account for this additional dimension of discord, especially because it does not correlate with the
binary measurement of discord in Divided Congress.
Lastly, legislative inertia for the one or two terms preceding the yearly district caseload is taken
into account via Bills Volume, since paucity of legislative measures may lead to more litigation, while I
also control for the influence of detailed legislation one and two terms before the examined caseload
was initiated, approximating the quality of legislation via the length of statutes and clauses.

2.5. Results
The results of the logistic regression model appear in Table 2.1. There is general support for
most of the hypotheses regarding inter-institutional considerations behind Supreme Court justices’
strategic dissenting and concurring, suggesting that the justices are indeed motivated by a number of
factors lying outside court chambers. In the first set of hypotheses motivated by the theory of
judicialization which regard governmental unity, I find strong support that a unified Congress leads
to fewer strategic minority opinions, but no relationship between these opinions and unified
government.

----------------- TABLE 2.1 ABOUT HERE ----------------

75
Moreover, the next set of hypothesis features the author’s operationalization of what the effect
of the law’s quality would have for the practice of strategically concurring and dissenting.
Specifically, when declarations by the justices that the specific law/statute before them is vague
increase, so does the probability for authoring strategic minority opinions with the coefficient
moving in the expected positive direction and significant at the 0.01 level, a relationship that was
also confirmed in the previous chapter. The second qualitative aspect of laws, which is the length of
the legislation reviewed by the justices and measured in the number of pages, is also significant at
the 0.05 level, indicating that the lengthier a statute/clause is, the less justices tend to write strategic
minority opinions.
Both the rational choice model of judicial behavior and the theory of judicialization pose that
judicial actors do not function in an isolated environment but take into consideration both intra-
court and interbranch factors. Operationalizing interbranch relationships in the form ideological
tendencies and proximity, I look at how ideology may affect the justices’ practice of strategic
authorship of minority opinions vis-à-vis key players in the elected branches. Here the model
confirms that as the absolute ideological distance between the Senate median member and the
author increases and the same distance between the President and the opinion’s author increases, the
more justices signal solutions, preferences, and admonitions to these key-players. The coefficients
for these two hypotheses are positive and significant at 0.025 and 0.01 respectively. This shows that
justices do not primarily target key-players in other branches that are close to them ideologically and,
foreseeably, policy-wise, but take on the task of authoring a strategic minority opinion that is
intended to sound an alarm because the latter have veered off too much from the justices’ desirable
policy results.
The hypothesis on the relationship between the House’s median ideological member and the
opinion author, however, cannot be confirmed, which poses an intriguing question as to why the

76
other two key players in policy-making play a more important role for the signaling justices. This
propelled me to estimate a second variation of the model (available in the Appendix) in which I
substitute the absolute distances between medians in the House and Senate and the authors’
ideological points with the absolute distances of the House and Senate Judiciary Committees’
median members’ ideological scores and those of the authors of the minority opinions examined.
Because the Judiciary Committees of the two legislative chambers oversee both reforms and
management of the federal courts, as well as review all proposed legislation, the authors of strategic
minority opinions may be targeting with their message these bodies which function as gate-keepers
for matters that profoundly affect the courts (Baumgartner and Jones 1993, Mayhew 1974). Due to
high collinearity between the ideological scores of the median member of the House and the median
member of the House Judiciary Committee (and those of the respective Senate bodies), both sets of
variables are not tested in the same model. The alternative model features minute differences; of
lone importance is the variable measuring the absolute distance in ideology between the House
Judiciary Committee’s median member and the author of the minority opinion being statistically
significant at the 0.025 level and denoting an opposite direction from that of its Senate Judiciary
Committee counterpart. Explicitly, the variable shows that as the ideological distance between the
House Judiciary Committee median member and the minority opinion author increases, the
probability of authoring a strategic dissent or concurrence decreases. The variable measuring the
same distance between the Senate Judiciary Committee median and the author, however, mirrors the
relationship between the median ideological member of the full chamber and the author, i.e. the
probability of strategy increases as the Senate Judiciary Committee moves further away ideologically
from the minority opinion’s author.
Prior research explains how the House’s various committees -more so than the Senate’s-
possess agenda-setting powers, which can be used to extract concessions from other members and

77
committees by potentially blocking all other legislation (Cox and McCubbins 1993, Gailmard and
Jenkins 2007). Under this light, the signaling justice, while generally attempts to bring closer to her
suggestions those who lie further away ideologically, loses motivation to author strategic minority
opinions when the House Judiciary Committee moves away ideologically, because in order to inspire
any sort of solution to the elected branches, she would at least need the support of the initiating
legislative gate-keeper most-relevant to judicial branch matters; the House Judiciary Committee. If
the majority of this committee is not close to the minority opinion-authoring justice, then any signals
attempting to suggest legislative solutions could be futile from the start. This proposition is limited
to justices’ signals and issues relating to the House Judiciary Committee’s generalized work;
nevertheless, it is an important aspect of the practice of strategic minority opinions that may be
occurring with other congressional committees as well.
Returning to Hypothesis 8 of this chapter and Table 2.1, the coefficient for Government Litigant is
significant at the 0.025 level and moving in the anticipated direction; minority opinion authors
strategize more when one party of the suit is governmental, therefore the hypothesis is confirmed.
With regards to the control variables presented in the model, when the president is Republican, the
probability for strategic minority opinions increases. This supports prior research on the extension
of private enforcement regimes during Republican administrations and how these in turn may
encourage justices on the Supreme Court to settle and regulate disputes that have not been
addressed legislatively, which propels justices who are found in the minority to attempt to shift
decision-making back to the legislative/executive branch by issuing a strategic minority opinion.
Controlling for the effect of House-Senate Distance on the practice of strategic minority opinions;
this does not reveal a significant relationship with the dependent variable. While the measurement of
the variable is quite distinct from United Congress and there is no collinearity between the two, it
would generally be expected that the two variables would be pointing to a similar effect between

78
them and strategic concurrences and dissents. Additionally, controlling for the volume of bills
enacted each term does not reveal an important relationship between it and minority opinion
strategy.
The final control variables of this model seek to interpret the effect of caseload in the various
federal court levels on the justices’ minority signaling strategies and, as shown in Chapter 1, an
increasing Supreme Court caseload depresses the probability for strategic minority opinions, as the
coefficient of the variable is negative and significant at the 0.025 level. Similarly, as the number of
cases reviewed in the Circuit Courts increases, strategic minority opinions are written with less
frequency; the coefficient is negative and significant at the 0.025 level. Nevertheless, the same
relationship cannot be supported for the federal district court caseload, whose coefficient does not
reach significance at the set levels. This suggests that an increasing caseload in the Circuit Courts
puts pressure on the justices with more petitions for certiorari and quite possibly, with more such
writs granted, which would leave less time to the justices to engage in research for new doctrine or
caselaw that could function as an aid to future litigants.
The results of Models 2A and 2B test Hypothesis 9 and address the other side of the
phenomenon of judicialization. As a reminder, it was hypothesized that an increase in signaled
strategy in the form of minority opinions by the U.S. Supreme Court would lead to a surge in the
overall district court caseloads in the following years, partly because it is the goal of the signaled
opinion to inspire future litigation and partly because the act itself of issuing minority opinions often
enervates majority opinions. From Table 2.2, in both models the main independent variable is
significant at the 0.01 level and moving in the expected direction; when the percent of strategic
minority opinions in a given term increases, the number of cases filed in federal district court also
increases during the term that immediately follows, as well as the term after that.

79
----------------- TABLE 2.2 ABOUT HERE -----------------
Because both models employ OLS estimation, the coefficients can be interpreted with relative
ease; specifically, for an 1% increase in strategic minority opinions in a given term, there is an
increase of over 1,700 new cases filed in district court the following term and an increase of over
3,350 cases initiated two terms later. While this is not a dramatic effect, considering the overall
district court caseload numbers almost 300,000 in recent years, the effect of strategic minority
opinions remains significant and adds to the effect of other institutional factors on caseload trends.
Unsurprisingly, when controlling for other institutional factors during the one and two terms
preceding district court caseloads, the percent of Enacted Bills reveals important effects. A 1 unit
increase in the number of bills enacted out of those proposed results in over 18,000 fewer cases for
the next term and over 21,000 fewer cases two terms later. The range of bills enacted throughout the
31 Supreme Court terms studied varies between 3.4%-7.9% of all bills proposed, so a 1% increase
would be noteworthy. Additionally, the legislative environment of one and two years before, in
terms of ideological congruence, has a profound effect on caseload. A one unit increase in the
distance between the House ideological median member and the Senate ideological median would
incur a 242,000-case rise during the next term, while the effects of an increasing distance would
persist two years later with approx. 184,000 new cases filed in the federal districts.
The quality of legislation for District Caseload-1 is significant at the 0.1 level, with lengthier bills
and statutes leading to fewer new cases files, but the variable does not reach significance for District
Caseload-2. The other two control variables are all significant at the 0.01 level, but most move in the
opposite than the expected by the theory direction. A Unified Congress seems to incentivize new
litigation both one and two terms later, which relationship can be explained if it is accompanied by
an uncooperative executive branch; the variable is positive and significant at the 0.01 level for both
iterations of the model. An interesting change is noted with Unified Government; if there is a unified

80
executive and legislative branch in the year immediately preceding District Caseload, this does not
deter new litigation, on the contrary, the caseload is still increasing. However, Unified Government does
depress litigation initiated two terms later, consistent with the theory. This suggests that a unified
government, which is expected to enact more legislation and provide solutions, may have a delayed
effect on litigation.

2.6. Discussion
Still looking for an answer in the 1988 enigmatic attempts at amending the Federal Tort Claims
Act and the outright inaction of policy-makers to provide a solution for the problems explored in
those pressing congressional meetings compels me to apply some of the central tenets and findings
of judicialization theory to this case. Institutional and political fragmentation along with conflicting
intra-party incentives shed partial light to the lack of legislative measures. In 1988, both chambers of
Congress were held by the Democratic Party, but the executive was Republican; a legislative solution
that would outright exclude government contractors from immunity claims and a narrower
interpretation of what “discretionary function” entails would risk being vetoed by an openly pro-
business Republican executive. Adding to the legislative dilemmas, the vague and ambiguous statute
itself allowed justices to entertain multiple interpretations of the law and even more options as to
what a solution could be. While Justice Brennan in his dissent admonished Congress of the vague,
problematic framework for government contractors in Boyle, his strategy did not convince
congressmembers to move the proposed bill out of the House Judiciary Committee and into the
floor.
Additionally, while efforts to delineate the status of government contractors in a more decisive
manner had been present for at least a decade before Boyle, the members of the Senate and House
Judiciary Committees had to balance the interests of corporations, whose factories and headquarters

81
resided in their districts and states and were lobbying for immunity against suits, with the interests of
severely injured citizens, such as community groups who were victims of radiation from federal
facilities including military bases, trade union members who worked at federally contracted facilities
liable for contamination, and other general product liability claimants. VanSickle-Ward (2014)
explains how opposing interests lobbying legislators in high-salience cases lead to compromises in
the laws passed, but above all, in the quality of the laws passed.
Faced with a steadily rising number of FTCA lawsuits in the mid and late-80s, legislators in
this instance decided to advance the bill that would override the Westfall decision which limited
governmental employee immunity and instead restore blanket immunity, while signaling to the
Supreme Court that further restrictions on government immunity would not be tolerated. Under this
light, Eskridge explains how “the Court has long maintained that "legislative inaction" might ratify
or bolster statutory interpretations reached not only by the Supreme Court, but also by lower courts
or agencies” (1991:400). In other words, the Court is expected to not pay attention to legislative
hearings or proposals in committees attempting to modify specific interpretations, unless something
substantive and final comes out of them, which explains the majority’s decision to affirm the vague
interpretation of governmental immunity extended to contractors in Boyle, despite a decade of
hearings seeking to define this doctrine in a more effective manner. The Court’s reinforcement of
the ambiguous immunity status of governmental contractors and the case-by-case approach in
federal tort lawsuits, in the end, did favor contractors more than it did injured claimants; looking at
the amici curiae briefs filed in Boyle, one can see multiple frequent federal contractors filing in favor
of respondent, United Tech Corp., such as Boeing, IBM, Lockheed, Hughes Aircraft Company,
Goodyear, Eaton Corp. while the list goes on. Later Circuit Court litigation applying and developing
the Boyle doctrine solidified the immunity status of these contracting companies, especially when
procuring products and services to the military, even when not enjoying combatant status. Punishing

82
wrong-doers has been limited to piecemeal legislation; such was the case with the 1990 Radiation
Exposure Compensation Act, which was a program devised by Congress to allow partial restitution
to individuals who developed serious illnesses after exposure to radiation during atmospheric
nuclear tests or due to employment in the uranium industry, and which victims composed one of the
groups testifying in the Subcommittee hearings of April 1988 in favor of limiting government
contractors’ immunity and of a narrow interpretation of the “discretionary function” exemption, i.e.
the two bills that never left the Committee
43
.
During the 1988 FTCA hearings, Congress was being pulled in two opposite directions;
liability and justice for tort victims on one hand, and corporations working as contractors
threatening to raise prices for products and services were they not afforded immunity, on the
other
44
. Any resolution to afford injured parties broad avenues of compensation would incur
negative reactions from contractors and a pro-business executive branch, while not addressing
grievances, at least in the most high-profile cases, would cost them votes. In this sense, Justice
Brennan’s strategic minority opinion in Boyle was an action undertaken so as to convince inter-
institutional counterparts of a desirable solution, but also a plea for policy-making that would
address persistent problems flooding the courts. His strategic dissent was encouraged by interbranch
ideological divergence, legislative inaction, and judicial deference to this inaction; three factors
which, as judicialization theory suggests, lead to sui generis solutions in the courts and a boost in
litigation itself. While Justice Brennan was ideologically situated relatively close to the House
Judiciary Committee median member, and could reasonably expect the Committee to initiate

43
The Act was designed to serve as a low-cost alternative to litigation, since it would not require claimants to
establish causation in order to receive compensation. The largest amount victims would be able to receive is
$100,000 depending on severity of disease, admittedly a remarkably lower amount than what could be achieved
through litigation.
44
See transcripts of the hearings before the Subcommittee on Administrative Law and Governmental Relations of
the Committee on the Judiciary, House of Representatives, 100th Congress, 2nd Session on H.R. 4358, H.R. 3872,
and H.R. 3083, “Legislation to Amend the Federal Tort Claims Act”, April 14, 1988, Serial No. 55.

83
legislation, the executive branch laid significantly further from him, and so did Congress with respect
to the president.
The case of FTCA is hardly unique, but its exploration is necessary so as to highlight that
strategic minority opinions are not only the product of a justice’s personal policy or other
preferences but are also born out of the institutional environment surrounding the justice.
Admittedly, the 1988 FTCA amendments example provides a broader account of the factors that
went into crafting the minority opinion than the ones tested for in the models. The model’s
limitations lie within the lack of accounting for interest group activity connected to the minority
opinions either in congressional hearings or through amicus briefs, salience of the issue each
minority opinion deals with, and an in-depth assessment of the quality of laws addressed in each
minority opinion; all of which elucidate motivations in the FTCA case in crucial ways, but collecting
and analyzing these measurements constitutes an additional lengthy research endeavor of its own. In
the future, to move this project forward, I will be expanding the database in the aforementioned
ways and if not feasible due to data restrictions, then implementing case-studies based on legal area
or issue could also function as a valid alternative. For example, specific-issue variables regarding the
volume of proposed bills after a minority opinion is published and variables measuring the volume
of suits filed in district/circuit courts would showcase the precise effects of strategic minority
opinions and the phenomenon of judicialization overall. But because there are thousands of
different legal issues covered in the database throughout these 31 terms and each case would require
thorough content analysis to determine the above, for the time being, the vastness of these variables
precludes their consideration at this stage of the project.
While the absence of the aforementioned factors places limitations on the ability to broadly
generalize, especially with regards to the District Court Caseload models, both models’ observational
data OLS analyses remain strongly significant with an R-squared close to 0.5, indicating the models’

84
good fit. One important reminder to be made is that this chapter does not claim to investigate all
existing factors behind justices’ strategic behavior with regard to minority opinions, but it does show
that this behavior, in addition to others, is contingent upon interbranch relations, the legislative
environment, various parties’ interests, as well as judiciary-specific factors, such as court caseload.
The results of the models show these factors to be significant and having the expected effect on the
practice of strategic minority opinions, consistent with the theory of judicialization, i.e. the theory
that explains how specific conditions in the elected branches and sociolegal design promulgate the
resolution of political disputes in courts rather than through regular politics. Strategic minority
opinions are bolstered by highly judicialized environments but also, in turn, promote judicial
solutions by addressing societal and political parties who can advance their interests through
litigation. The second effect in particular will be addressed in the chapter that follows, where the
outcomes of strategic minority opinions in Supreme Court cert-granted cases will be explored, as
well as a closer look into specific areas of law.
So far, this chapter has shown that justices tend to author strategic minority opinions when
the Senate and executive branch (but not the House Judiciary Committee) move ideologically further
away in an effort to influence them towards more preferable action, when the law reviewed is
declared vague, when one of the litigant parties is governmental, and when the executive is one that
favors private enforcement regimes over generalized legislative solutions. On the other hand, justices
dissent and concur strategically with less frequency when both congressional chambers are carried
by the same party, when Supreme and Circuit Court caseloads increase, and when laws are lengthier
and therefore more detailed.
Moreover, included in the findings and the theory of judicialization would expect, the caseload
of U.S. District Courts increases when the justices’ practice of authoring strategic minority opinions
has been intensifying in the terms preceding those studied and the effect remains significant when

85
controlling for other explanatory factors. Specifically, over time, suits initiated each term in federal
district court -a broad indication of how many grievances seek redress through litigation- intensify
when the ideological distance between the House and Senate increases, but slow down when the
legislative chambers are held by the same party. More notably, however, district caseload
substantially decreases when the per term percentage of enacted/proposed bills increases.
To the best of the author’s knowledge, this is the first study to systematically research the
relationship between strategic minority opinions (and of minority opinions in general) on the U.S.
Supreme Court and the inter-institutional context that surrounds them. It is the first to present
evidence showing that a practice thought of as highly doctrinal and contained within the judiciary is
hardly isolated from its political environment; justices take into consideration the ideological
leanings of key players in the legislative and executive branches, as well as governmental
composition in general. This study, guided by the theory of judicialization, empirically contributes to
our understanding of the multitude of ways through which courts can affect the transformation of
political disputes into judicial ones and offers initial evidence of Supreme Court strategic dissents
and concurrences affecting district court caseload; a possibility up to now theoretically discussed or
reviewed in singular cases. What remains to be investigated in the next chapter is the specific effect
of this judicial tool on future litigation, as well as to offer a primary but necessary assessment of its
success as a practice, by looking at how much it can change legal discourse and further the interests
of litigants who employ justice-signaled strategies.

2.7. Bibliography
Barnes, Jeb. 2011. Dust-up Asbestos Litigation and the Failure of Commonsense Policy Reform. Washington,
D.C: Georgetown University Press.

86
Baum, Lawrence and Lori Hausegger. 2004. “The Supreme Court and Congress: Reconsidering the
Relationship”, in Putting the Pieces Together: Lawmaking from an Inter-Branch Perspective, eds. Mark C.
Miller and Jeb Barnes, pp. 107-122, Washington, DC: Georgetown University Press.

Baumgartner, Frank and Bryan Jones. 1993. Agendas and Instability in American Politics. Chicago:
University of Chicago Press.

--------- 2002. Policy Dynamics. Chicago: University of Chicago Press.

Burke, Thomas. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society.
Berkeley: University of California Press.

Cornell, William. 1989. “Evaluation of the Federal Employees Liability Reform and Tort
Compensation Act: Congress' Response to Westfall v. Erwin”, San Diego Law Review, Vol. 26,
pp. 137-155.

Cox, Gary and Matthew McCubbins. 1993. Legislative Leviathan: Party Government in the House.
Berkeley: University of California Press.

Cox, Gary and Matthew McCubbins. 2005. Setting the Agenda: Responsible Party Government in the U.S.
House of Representatives. Cambridge: Cambridge University Press.

Crespi, Gregory. 2000. “The Influence of a Decade of Statutory Interpretation Scholarship on
Judicial Rulings: An Empirical Analysis.” SMU Law Review, Vol. 53, No.1, pp. 9–30.

Cross, Frank B. 1989. “Rethinking Environmental Citizen Suits.” Temple Environmental Law &
Technology Journal, Vol. 8 (Fall), pp. 55–76.

--------- 1998. “The Justices of Strategy”. Duke Law Journal, Vol. 48, No. 3, pp. 511–570.

Dahl, Robert. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-
Maker”. Journal of Public Law, Vol. 6, pp. 279-295.

Epstein, David and Sharyn O’Halloran. 1999. Delegating Powers: A Transaction Cost Politics Approach to
Policy Making un- der Separate Powers. New York: Cambridge University Press.

Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press.

Epstein, Lee, Jack Knight, and Andrew Martin. 2001. “The Supreme Court as a Strategic National
Policymaker”. Emory Law Journal, Vol. 50, No. 2, pp. 583-611.

Epstein, Lee, Andrew D. Martin, Jeffrey A. Segal, and Chad Westerland. 2007. “The Judicial
Common Space,” 23 Journal of Law, Economics, and Organization, 303.

Epstein, Lee, William Landes, and Richard Posner. 2013. The Behavior of Federal Judges: A Theoretical
and Empirical Study of Rational Choice, Boston, MA: Harvard University Press.

87
Eskridge, William N., Jr. 1991. “Overriding Supreme Court Statutory Interpretation Decisions.” Yale
Law Journal, Vol. 101, No. 2, pp. 331–455.

---------- 1994. Dynamic Statutory Interpretation. Cambridge, MA: Harvard University Press.

Eskridge, William N., Jr., Phillip P. Frickey, and Elizabeth Garrett. 2001. Cases and Materials on
Legislation: Statutes and the Creation of Public Policy. Saint Paul, MN: West Group.

Farhang, Sean. 2008. Public Regulation and Private Lawsuits in the American Separation of Powers
System. American Journal of Political Science, Vol. 52, No. 4, pp. 821–39.

---------- 2009. “Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act
of 1991”. Journal of Empirical Legal Studies, Vol. 6, No. 1, pp. 1–34.

---------- 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, N.J.:
Princeton University Press.

---------- 2012. “Legislative-Executive Conflict and Private Statutory Litigation in the United States:
Evidence from Labor, Civil Rights, and Environmental Law.” Law & Social Inquiry, Vol. 37, No.
3, pp. 657–85.

Fenno, Richard. 1978. Home Style: House Members in their Districts. Boston, MA: Little, Brown.

Frymer, Paul. 2003. “Acting When Elected Officials Won’t: Federal Courts and Civil Rights
Enforcement in U.S. Labor Unions, 1935-1985.” American Political Science Review, Vol. 97, No. 3,
pp. 483–499.

Fukes Stewart, Julie. 2010. “Litigation is Not Ping-Pong, Except When It Is: Resolving the Westfall
Act's Circularity Problem”, Cornell Law Review, Vol. 95, p. 1021.

Gailmard, Sean and Jeffery Jenkins. 2007. “Negative Agenda Control in the Senate and House of
Representatives: Fingerprints of Majority Party Power.” Journal of Politics, Vol. 69, No. 3, pp.
689-700.

Galanter, Marc. 1983. “The Radiating Effects of Courts”, in Empirical Theories about Courts, ed. Keith
O. Boyum and Lynn Mather. New York, NY: Longman.

Gillman, Howard. 2002. “How Political Parties Can Use the Courts to Advance Their Agendas:
Federal Courts in the United States, 1975-1891”. American Political Science Review, Vol. 96, pp.
511-524.

Ginsburg, Tom and Robert Kagan. 2005. Institutions and Public Law: Comparative Approaches. New
York, NY: Peter Lang.

Graber, Mark. 1993. The Counter-Majoritarian Difficulty: Legislative Deference to the Judiciary”.
Studies in American Political Development, Vol. 7, pp. 35-73.

88
Harvey, Anna and Barry Friedman. 2006. “Pulling Punches: Congressional Constraints on the
Supreme Court’s Constitutional Rulings, 1987–2000”. Legislative Studies Quarterly, Vol. 31, No. 4,
pp. 533–562.

Hausegger, Lori and Lawrence Baum. 1998. “Behind the Scenes: The Supreme Court and Congress
in Statutory Interpretation.” In Great Theatre: The American Congress in Action, ed. Herbert F.
Weisberg and Samuel C. Patterson. New York: Cambridge University Press, 224– 47.

--------- 1999. “Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory
Interpretation.” American Journal of Political Science, Vol. 43, No. 1, pp. 162-185.

Huber, John and Charles Shipan. 2002. Deliberate Discretion? The Institutional Foundations of Bureaucratic
Autonomy. New York: Cambridge University Press.

Jacobson, Gary. 2003. “Partisan Polarization in Presidential Support: The Electoral Connection.”
Congress and the Presidency, Vol. 30, No. 1, pp. 1–36.

Lewis, Jeffrey B., Keith Poole, Howard Rosenthal, Adam Boche, Aaron Rudkin, and Luke Sonnet.
2018. Voteview: Congressional Roll-Call Votes Database. https://voteview.com/

Kagan, Robert. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard
University Press.

Levin, Alison. 2004. “The Safety Act Of 2003: Implications for the Government Contractor
Defense”. Public Contract Law Journal, Vol. 34, No. 1, pp. 175-205.

Lovell, George. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy.
Boston, MA: Cambridge University Press.

Lowi, Theodore. 1979. The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority. New York,
NY: Norton Publishing.

Maltzman, Forrest and Charles Shipan. 2008. “Change, Continuity, and the Evolution of the
Law.” American Journal of Political Science, Vol. 52, No. 2, pp. 252–267.

--------- 2012. “Beyond Legislative Productivity: Enactment Conditions, Subsequent Conditions, and
the Shape and Life of the Law.” In Living Legislation: Political Development and Contemporary
American Politics, ed. Jeffrey A. Jenkins and Eric M. Patashnik. Chicago: University of Chicago
Press.

Maltzman, Forrest, Alyx Mark, Charles R. Shipan, and Michael A. Zilis. 2014. “Stepping on
Congress: Courts, Congress, and Interinstitutional Politics”. Journal of Law and Courts, Vol. 2,
No. 2, pp. 219-240.

Mammen, Christian. 2002. Using Legislative History in American Statutory Interpretation. The Hague:
Kluwer Law International.

Mayhew, David. 1974. Congress: The Electoral Connection. New Haven: Yale University Press.

89
--------- 2005. Divided We Govern: Party Control, Lawmaking and Investigations, 1946-2002. New Haven:
Yale University Press.

McCann, Michael. 1999. “How the Supreme Court Matters in American Politics: New
Institutionalist Perspectives.” In Howard Gillman and Cornell Clayton, eds. The Supreme Court in
American Politics: New Institutionalist Interpretations. Lawrence, KS: University Press of Kansas, pp.
63-97.

McNollgast. 1989. “Structure and Process, Politics and Policy: Administrative Arrangements and
Political Control of Agencies.” Virginia Law Review 75, pp. 431–82.

Melnick, Shep. 1994. Between the Lines: Interpreting Welfare Rights. Washington, DC: The Brookings
Institution.

---------- 2004. “Courts and Agencies.” In Making Policy, Making Law: An Interbranch Perspective, ed.
Mark C. Miller and Jeb Barnes. Washington, DC: Georgetown University Press, pp. 89–104.

O’Connor, Karen and Lee Epstein. 1985. “Bridging the Gap between Congress and the Supreme
Court: Interest Groups and the Erosion of the American Rule Governing Award of Attorney’s
Fees.” Western Political Quarterly, Vol. 38, No. 2, pp. 238–249.

Ornstein, Norman, Thomas Mann, Michael Malbin, Andrew Rugg, and Raffaela Wakeman. 2014.
“Vital Statistics on Congress”, www.brookings.edu/vitalstats.

Peterson, Jordan Carr and Christian Grose. 2015. “The Private Interests of Public Officials:
Financial Regulation in the U.S. Congress”. Paper presented at the Western Political Science
Association Annual Meeting, Las Vegas-April 2015.

Pierson, Paul. 2000. “Increasing returns, Path Dependence, and the Study of Politics.” The American
Political Science Review, Vol. 94, No. 2, pp. 251-267.

Rakowsky, Kateryna. 2006. “Military Contractors and Civil Liability: Use of the Government
Contractor Defense to Escape Allegations of Misconduct in Iraq and Afghanistan.” Stanford
Journal of Civil Rights & Civil Liberties, Vol. 2, pp. 365-379.

Saeki, Manabu. 2009. “Gridlock in the Government of the United States: Influence of Divided
Government and Veto Players.” British Journal of Political Science, Vol. 39, pp. 587–607.

Segal, Jeffrey. 1997. “Separation-of-Powers Games in the Positive Theory of Congress and Courts”.
American Political Science Review, Vol. 91, No. 1, pp. 28-44.

Segal, Jeffrey and Harold Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited.
Cambridge, UK: Cambridge University Press.

Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. University of Chicago Press.

Shapiro, Martin and Alec Stone Sweet. 2002. On Law, Politics, and Judicialization. Oxford; New York:
Oxford University Press.

90

Shepsle, Kenneth and Barry Weingast. 1987. “The Institutional Foundations of Committee Power”.
American Political Science Review, Vol. 81, No. 1, pp. 85-104.

Shipan, Charles. 1997. Designing Judicial Review: Interest Groups, Congress and Communications Policy. Ann
Arbor: University of Michigan Press.

Silverstein, Gordon. 2009. Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. New York:
Cambridge University Press.

Smith, Joseph. 2005. “Congress Opens the Courthouse Doors: Statutory Changes to Judicial Review
under the Clean Air Act.” Political Research Quarterly, Vol. 58, No. 1, pp. 139– 149.

--------- 2006. “Judicial Procedures as Instruments of Political Control: Congress’ Strategic Use of
Citizen Suits.” Legislative Studies Quarterly, Vol. 31, No. 2, pp. 283–305.
Spaeth, Harold J. 2016. The Supreme Court Database. Center for Empirical Research in the Law at
Washington University.
Spann, Girardeau. 1993. Race Against the Court: The Supreme Court and Minorities in Contemporary America.
New York: New York University Press.

Stone Sweet, Alec. 1999. “Judicialization and the Construction of Governance”. Comparative Political
Studies, Vol. 32, No. 2, pp. 147-184.

Tsebelis, George. 2002. Veto Players: How Political Institutions Work. Princeton, NJ: Princeton
University Press.

VanSickle-Ward, Rachel. 2014. The Devil is in the Details: Understanding the Causes of Policy Specificity and
Ambiguity. Albany, NY: SUNY Press.

Yeazell, Stephen. 2004. “Brown, the Civil Rights Movement, and the Silent Litigation Revolution.”
Vanderbilt Law Review, Vol. 57, pp. 1975–2003.

Boyle v. United Techs. Corp., 1987 U.S. S. Ct. Briefs Lexis 353

Hearings before the Subcommittee on Administrative Law and Governmental Relations of the
Committee on the Judiciary, House of Representatives, 100th Congress, 2nd Session on H.R.
4358, H.R. 3872, and H.R. 3083, “Legislation to Amend the Federal Tort Claims Act”, April 14,
1988, Serial No. 55.

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2.8. Main Model Tables
Table 2.1
Strategic Minority Opinions and Inter-Institutional
Context

Independent Variables

Strategic Status coefficients
Unified Government .011 (.094)
Unified Congress -.233** (.118)
Bills Volume -0.0001 (0.0003)
Vagueness .358*** (.086)
Legislation Length -.0001* (.00006)
House-Author Distance -.3 (.267)
Senate-Author Distance .872** (.295)
President-Author Distance .31*** (.082)
Government Litigant .18** (.073)
House-Senate Distance -.862 (.611)
Incumbent President Party .168** (.086)
Supreme Court Caseload -.009** (.003)
District Court Caseload -3.39e-07 (8.99e-07)
Circuit Court Caseload -.00002** (9.55e-06)
Constant -1.528* (.839)
N 4752
Robust standard errors in parentheses.
*p<0.05, ** p<.025, *** p<.01 (all one-tailed tests except District
Court Caseload and Circuit Court Caseload)

92
Table 2.2
Strategic Minority Opinions and District Court Caseload

Model 2A Model 2B

Independent Variables
District Caseload-1
coefficients
District Caseload-2
coefficients
Strategy Per Term 1762.54*** (117.55) 3368.409*** (126.42)
Unified Congress 35143.28*** (1131.08) 68257.84*** (1575.56)
Unified Government 14294.22*** (1201.38) -8453.67*** (1268.15)
Enacted Bills Percent -18358.88*** (497.69) -21462.91*** (467.96)
Legislation Length -2.02* (1.51) 1.375 (1.08)
House-Senate Distance 242265.3*** (7024.72) 139648.9*** (7581.15)
Constant 249459.8*** (6641.72) 185343.5*** (6941.91)
N 4752 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests)

2.9. Appendix A

The results of the alternative model featuring the ideological distance between minority opinion
authors and the House and Senate Judiciary Committee median members instead of the full
chamber medians are near identical in terms of effect and direction of the coefficients. The only
difference in the results is that the distance between minority opinion author and House Judiciary
Committee median member, House Judiciary Committee-Author Distance, becomes significant at the 0.05
level, denoting that as the distance between those parties decreases, the probability for authoring a
strategic minority opinion increases. As discussed in the main body of the chapter, while the House
Median-Author Distance variable does not reach statistical significance, the House Judiciary Committee
acts as a general legislative gate-keeper, so any attempts from Supreme Court justices to influence or

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inspire legislative action would have to first fall on sympathetic ears before moving through the next
steps of the legislative process.

Table 2.3
Strategic Minority Opinions and Inter-Institutional
Context

Independent Variables

Strategic Status coefficients
Unified Government .113 (.094)
Unified Congress -.22* (.19)
Bills Volume -0.0001 (0.0003)
Vagueness .36*** (.086)
Legislation Length -.0002* (.00006)
House Judiciary Committee-Author
Distance
-.401** (.175)
Senate Judiciary Committee-Author
Distance
.857*** (.205)
President-Author Distance .373*** (.078)
Government Litigant .183** (.073)
House-Senate Distance -.803 (.606)
Incumbent President Party .161* (.086)
Supreme Court Caseload -.009** (.003)
District Court Caseload -2.38e-07 (9.00e-07)
Circuit Court Caseload -.00002* (9.55e-06)
Constant 1.474** (.854)
N 4752
Robust standard errors in parentheses.
* p<.05, ** p<.025, *** p<.01 (all one-tailed tests except District
Court Caseload and Circuit Court Caseload)

94

2.10. Appendix B
The Poisson regression versions of Models 2A and 2B below denote the same relationships
for all variables in explaining District Caseload-1 and District Caseload-2 with the exception of Legislation
Length, which loses the 0.1 significance when regressing in Model 2C and gaining significance at the
0.1 level in Model 2D. The length of legislation of two terms before the term in which the District
Courts Caseload is considered seems to minimally inflate litigation as it increases. However, the
instability of the variable’s direction and strength warns of its loose connection for explaining trends
in District Court caseload, so it should be considered with these caveats in mind.

Table 2.4
Strategic Minority Opinions and District Court Caseload Poisson Regression

Model 2C Model 2D

Independent Variables
District Caseload-1
coefficients
District Caseload-2
coefficients
Strategy Per Term .006*** (.0004) .011*** (.00045)
Unified Congress .118*** (.004) .236*** (.006)
Unified Government .044*** (.004) -.033*** (.004)
Enacted Bills Percent -.065*** (.002) -.073*** (.0017)
Legislation Length -6.84e-06 (5.75e-06) 5.46e-06* (4.02e-06)
House-Senate Distance .777*** (.023) .457*** (.026)
Constant 12.465*** (.023) 12.238*** (.025)
N 4752 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests)

95
Chapter 3.
Judicial Dialogue, Policy Change, and the Practice of Strategic Minority Opinions.

3.1. Introduction
The 2017 Supreme Court term dealt with many important cases in multiple legal areas. One
such case was South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018), a decision that was afforded
immediate landmark status on the basis of not only overruling two previous cases, but because it is
credited with the dissolution of the physical presence requirement in interstate commerce for
taxation purposes, a rule that had been legal doctrine interpreting Article I’s commerce clause for
more than 60 years. A particular point of interest in this case, however, lies with the fact that the
majority opinion was openly based on a strategic concurrence from a prior relevant case, which
itself had been inspired by a strategic dissent appearing in one of the aforementioned overruled
cases two decades earlier.
If the previous chapter presented the institutional framework that has to be taken into
consideration using the example of how justices use strategic minority opinions to signal other
branches, nevertheless without necessarily achieving their end goal, this chapter instead focuses on
the effects of the practice of strategically dissenting and concurring, by showcasing the successful
example of South Dakota v. Wayfair. For those who seek policy change, litigation poses one of the
most usual strategies towards achieving it. In countries that feature an independent judiciary, policy
change by taking the court route is a relatively faster, less expensive, and more predictable process
compared to social mobilization or lobbying for specific legislation, both of which require
substantial human capital, financial resources, and a cooperative political environment (Kagan 2001).
When transcending national borders, globalized litigation allows for more avenues in addressing
shortcomings that occur in the domestic realm and structures transnational cooperation (Stone
Sweet and Grisel 2014), while it also exerts more pressure on national agents for expanding rights

96
protection (Sandholtz 2012).
Above all, however, litigation poses a highly stylized mode of conversation that judges engage
in (Bennett 2001); a form of dialogue among them, between them and the public, and between them
and other governmental branches, be it federal or state in the case of the United States. Because
courts and judges deal in linguistic “currency”, change in doctrine, and by extension policy, is
structured around persuasive language with judges and litigants attempting to shape argumentation
frameworks (Stone Sweet 2002). The very scope of strategic minority opinions establishes their
practice as a form of judicial dialogue that occurs in various levels; on one end, as a persuasive
conversation between judges and their colleagues, and on the other, as an argumentation framework
with which litigants can shape their appeals to courts.
To better comprehend the effect of strategic minority opinions on judicial policy-making as a
doctrine-generating tool and a vehicle of judicial dialogue, this chapter studies U.S. Supreme Court
justices’ use of concurring and dissenting opinions vis-à-vis litigant behavior in the totality of cases
presented to that Court between 1980-2018. I argue and find that, in the long run, strategic minority
opinions are more visible to litigants than non-strategic ones, and are more effective at transforming
legal doctrine into majority opinions, on balance fulfilling the up until now mostly theoretical
expectation of legal and political scientists that minority opinions are written with an eye to the
future. Overall, this chapter responds to the general question of why and at what rate some minority
opinions are more consequential than others.

3.2. “Careful with that Minority Opinion, Justice”: The Case of South Dakota v. Wayfair
“… In Quill, the Court should have taken the opportunity to reevaluate Bellas Hess not
only in light of Complete Auto but also in view of the dramatic technological and social changes
that had taken place in our increasingly interconnected economy. There is a powerful case to
be made that a retailer doing extensive business within a State has a sufficiently “substantial
nexus” to justify imposing some minor tax-collection duty, even if that business is done
through mail or the Internet. After all, “interstate commerce may be required to pay its
fair share of state taxes.” D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31, 108 S. Ct.

97
1619, 100 L. Ed. 2d 21 (1988). This argument has grown stronger, and the cause more urgent,
with time. When the Court decided Quill, mail-order sales in the United States totaled $180
billion. 504 U. S., at 329, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (White, J., concurring in part
and dissenting in part). But in 1992, the Internet was in its infancy. By 2008, e-commerce
sales alone totaled $3.16 trillion per year in the United States…
… Given these changes in technology and consumer sophistication, it is unwise to delay any
longer a reconsideration of the Court’s holding in Quill. A case questionable even when
decided, Quill now harms States to a degree far greater than could have been
anticipated earlier. See Pearson v. Callahan, 555 U. S. 223, 233, 129 S. Ct. 808, 172 L.
Ed. 2d 565 (2009) (stare decisis weakened where “experience has pointed up the
precedent’s shortcomings”). It should be left in place only if a powerful showing can be
made that its rationale is still correct. The instant case does not raise this issue in a manner
appropriate for the Court to address it. It does provide, however, the means to note the
importance of reconsidering doubtful authority. The legal system should find an
appropriate case for this Court to reexamine Quill and Bellas Hess.” (Direct Mktg.
Association v. Brohl, 135 S. Ct. at 1134 (2015), Kennedy, J. concurring).

In 2015, Justice Kennedy issued a concurring opinion in Direct Marketing Association v. Brohl,
parts of which are featured above, calling for a new case-vehicle with which the Court could
overturn Quill Corp. v. North Dakota, 504 U.S. 298 (1992) and National Bellas Hess v. Department of
Revenue, 386 U.S. 753 (1967) and their holding of the physical presence test for taxation of out-of-
state sellers. In bold font are some of the legal points he provides, on the basis of which such action
could be undertaken, none of which are featured or discussed in the majority opinion of that case.
For decades, states had been trying to bypass or amend the interpretation of Article I’s
commerce clause as it had been shaped by Supreme Court precedent in the 50s and 60s (Hazen
2013, Varyani 2014). Under that interpretation, the dormant or negative commerce clause barred
states from taxing individuals who engaged in interstate commerce in those states, but had no
physical presence (no warehouses, outlets, branches, or agents), as such taxation was considered an
obstacle to interstate commerce and an attack on the taxed of their due process rights
45
. As mail-

45
Due process violation occurred because the taxed agents and businesses would have no recourse to services
provided by the state or access to participate in the political structure, since they wholly resided and
conducted business elsewhere, but would be required to submit sales or use tax to those states, effectively
undergoing “taxation without representation”.

98
order commerce grew more significant in worth through the years, states made various attempts to
regulate taxation of that commerce so as to balance the loss from declining local retail commerce
taxes and its substitution by out-of-state sellers, because self-reporting of out-of-state (mail)
purchases had been notoriously low resulting in diminished revenue for the states. In Quill, a first
major challenge to this taxation scheme took place; while the due process violation attached to
taxation of those commercial agents was overturned
46
, the physical presence test was upheld. In a
strategic dissent, Justice White called for the overruling of the commerce clause holding of Bellas
Hess as well, on the basis of the physical presence test being a different iteration of the due process
fairness requirement, which had just been abandoned, and of the arbitrary distortion in commerce
effectively created by the Court’s decision-making and not Congress’s (504 U.S. at 326, White, J.
dissenting in part).
During 1992 and the time of Quill, only one Justice shared the above opinion. By 2015,
however, new members on the Court seemed more inclined to revisit the issue. Justice Kennedy’s
strategic concurrence in Brohl stated as much, when he wrote that at least 3 members of the court in
Quill had voted based on precedent but remained unconvinced as to the soundness of its logic, while
a fourth member authored the strategic dissent aforementioned, therefore providing a shaky
majority. By pinpointing the precarious majority coalition and renewed willingness to revisit the
issue, and at the same time using J. White’s strategic dissent and providing a clear argumentation
framework to prospective litigants, Justice Kennedy invited test cases that would enable
reconsideration of stare decisis in this particular section of commerce clause interpretation.
The Brohl strategic concurrence met with considerable coverage in the press
47
and soon, South

46
The majority opinion in Quill overruled only the due process justification of Bellas Hess, which left the
remaining commerce clause reasoning valid.
47
From national coverage in the New York Times (see Adam Liptak, NYT, 3/4/2015) to
to local reporting in Tulsa World (OK), The Columbian (WA), The Bond Buyer and other state or specialized news
media.

99
Dakota legislators heeded the call of Justice Kennedy. In the 20 years from Quill, mail-order
commerce has been significantly surpassed by a different type of interstate commerce, which also
lacks the required physical nexus to the state that would allow for its taxation. With the proliferation
of technology and the internet, “online commerce has taken over a large part of in-person retail
purchases, but most states, including S. Dakota face a remarkably low rate of tax collection from
such purchases” both J. Kennedy and the S. Dakota legislators echoed, because (with the exception
of the biggest merchants who establish warehouses and distribution centers) most sellers have no
connection to the state. For years, less populous states had been collecting notably decreased
revenue and had been unable to tend to various important public services, while Congress, which
possesses the ability to regulate the area of interstate commerce, had been silent since Quill
(Zimmerman 2007: 166). As a response, less than a year later, S. Dakota passed 2016 Senate Bill 106,
in which it openly discussed the Kennedy concurrence as a justification for enacting legislation
requiring that “any seller selling tangible personal property, products transferred electronically, or
services for delivery into S. Dakota, who does not have a physical presence in the state… shall remit
the sales tax and shall follow all applicable procedures and requirements of law as if the seller had a
physical presence in the state, provided the seller meets either of the following criteria…”.
But the text of the bill was not the only document to copy J. Kennedy’s strategic concurrence
words; as a result of the S. Dakota bill, three online sellers with no physical presence in that state did
not comply with obtaining a license and remitting a sales tax to the state and were subsequently
sued
48
. The argumentation put forth by J. Kennedy in the Brohl concurrence was given a prominent
place both in S. Dakota’s petition for a writ of certiorari to the Supreme Court and in the state’s
brief on the merits, once cert was granted
49
. In S. Dakota v. Wayfair, Inc., J. Kennedy persuaded one

48
Wayfair, Inc., Overstock.com, Inc., and Newegg, Inc.
49
See respectively: Petition for Writ of Certiorari. South Dakota v. Wayfair, Inc., 2017 U.S. S. Ct. Briefs
LEXIS 3795 (Supreme Court of the United States, October 2, 2017)

100
of the skeptics in the Quill decision (J. Thomas), two post-Quill additions to the Court who had
showed signs of apprehension about the effects of Quill during Brohl’s consideration (J. Alito and J.
Ginsburg), and finally, then most recent addition to the high court, J. Gorsuch. In noteworthy
coincidence, the latter had been elevated from a judgeship on the 10
th
Circuit Court of Appeals,
where sitting in panel, he had heard and adjudicated Brohl before the case was considered at the
Supreme Court level. J. Gorsuch had also issued a concurrence in that case expressing his skepticism
about following stare decisis in the face of dramatic changes in the way commerce has been
conducted and the absence of a congressional regulatory scheme, resonating with what would be J.
Kennedy’s argument later on. By incorporating his strategic concurrence from Brohl, J. Gorsuch’s
concurrence from his 10
th
Circuit days, and the economic arguments put forth by S. Dakota and
other states in the amicus curiae briefs, J. Kennedy authored the majority opinion in Wayfair and
transformed his concurrence into binding legal doctrine.

3.3. Addressing policy needs through strategic minority opinions
The above look into the successful trajectory of a strategic minority opinion towards legal
change highlights the nature of litigation as an iterative game between participants, and the
importance of persuasive dialogue as a policy-making tool in the hands of judges. Previous
empirical accounts on the general effects of minority opinions inform us, for instance, that
concurring opinions which expand on the reasons for the correctness of the majority opinion
positively affect the upholding of precedent they set and are greater acknowledged by lower
appellate courts, while narrowing concurring opinions have the opposite effect for both precedent
and compliance by Circuit courts (Corley 2010). Baird and Jacobi (2009a, 2009b) show that dissents

Petitioner’s Brief. South Dakota v. Wayfair, Inc., 2018 U.S. S. Ct. Briefs LEXIS 759 (Supreme Court of the
United States, February 26, 2018).

101
act as signals from judges to litigants on how to frame future similar cases so as to increase the
chance of success for the argument the dissenting judge supports, while Collins (2004) finds that
Supreme Court justices who author concurrences are more likely to vote for overruling the
precedent that case set in the future. When a signal-containing minority opinion is received and later
used by attorneys in merits briefs, it can have an effect on the opinions of decision-makers; Epstein
and Kobylka compare merits briefs and the majority opinion in the death penalty case of Gregg v.
Georgia
50
, with previous case law and find that the justices nearly copied Justice Powell's dissent and
S. Gen. Bork's brief in Furman v. Georgia,
51
argued only 4 years earlier (1992, 114). Collins et al.
(2015) and Corley (2008), using plagiarism detection software, find that justices’ opinions copy
heavily from interest group and litigant party briefs, which briefs often echo earlier minority
opinions, such as in the seminal abortion cases sequence of Roe v. Wade, City of Akron v. Akron Center
for Reproductive Health, Planned Parenthood of Southeastern Pennsylvania v. Casey
52
.
The words of the justices themselves are also illuminating; for Justice Brennan a minority
opinion “challenges the reasoning of the majority, tests its authority and establishes a benchmark
against which the majority’s reasoning can continue to be evaluated, and perhaps, in time,
superseded” (1986: 435). Continuing in the logic of signaling, Justice Scalia views minority opinions
“as a vehicle for informing the public in general, and the Bar in particular, about the state of the
Court’s collective mind” (1994: 38). Inform the public to what end, however? Embedded in the
practice of authoring opinions in general is the expectation of error correction (Hellman 1982, Stone
Sweet and Shapiro 2002) which prompts a dialogue of sorts with past decisions, the case in hand,
and future possibilities (Lebovits et al. 2008).

50
428 U.S. 153 (1976).
51
408 U.S. 238 (1972).
52
410 US 113 (1973), 462 US 416 (1983), 505 US 833 (1992).

102
It has been established so far in the previous chapters that a specific type of minority opinion is
particularly linked to legal change because it promotes the kind of dialogue that breeds more
opportunities to “correct errors”. Strategic minority opinions are those minority opinions that
contain legal tests, standards, and/or reasoning for solving an issue, which have not been analyzed or
referred to by the respective majority opinion in each case and, therefore, have not been discussed
and rejected. Their very goal is to offer a new plan for addressing disputes in subsequent rounds of
litigation or convincing other branches to act according to their policy recommendations.
Under this light, the theory of third-party dispute resolution or TDR (Shapiro and Stone Sweet
2002) informs us that legal institutions, as the embodiment of TDR, produce network effects that
make them part of larger sociopolitical goals and practices. In other words, Shapiro (2002: 111)
explains that courts and lawyers communicate principally and extensively through judicial opinions
that follow the style of stare decisis and conform to its rules. Following this pattern of
communication, any requests for legal change, promulgated by the failure of the law to adjust to
environmental demands made during previous cycles of TDR, are transmitted again in the form that
is most natural to this environment- new argumentation frameworks.
When judges transmit signals in the form of strategic dissents or concurrences, they hope to
correct what they believe has not been resolved by the current normative framework by inciting
more litigation that will lead to a more desirable solution. Because of litigation's path-dependent
properties
53
, judges provide the argumentation framework that they believe would work best at

53
Litigation possesses educational properties and, as an iterative game, produces more positive results at
decreasing costs for participants (Hathaway 2001). Because of high network effects, litigants can easily gain
trial strategy sophistication once they start navigating court hallways and, gradually, they learn to frame
grievances in legalistic terms, which strengthens their view of the courts as an appropriate and effective forum
for attaining desired policy outcomes (Silverstein 2009). Once the choice in courts as a political resolution
forum occurs, it becomes increasingly counter-intuitive for participants to return to more traditional
regulatory solutions. This condition feeds back into the centrality of the role of the courts and allows them to
further develop tools and hone their policy-making capabilities by providing flexibility in policy
recommendations or by outright setting policy outcomes (Pierson 2000, Shapiro and Stone Sweet 2002).

103
chipping away the “problematic” norms that have set the precedent (White 1995). The theory of
litigation as an iterative game explains that the litigation market encourages the flow of a large
number of confirmation
54
messages between independent decision-makers; in this vein,
argumentation frameworks provided by the decision-makers themselves and used by litigants enjoy a
greater probability of being adopted (Shapiro and Stone Sweet 2002: 108). Judges can do this in an
explicit or implicit manner; Hathaway explains that litigants and lower courts often rely upon non-
binding statements on previously undecided or unclear issues for guidance. “These statements may
become the decisive factor in future lower court decisions and even in future cases in the same
court. Indeed, some judges, understanding this, might even engage in strategic opinion writing-
placing unnecessary statements in opinions (which are likely to go unnoticed and therefore
unchallenged by fellow judges) to be used by litigants, lower courts, and the judges themselves in
subsequent cases” (2001: 630).
The success of a justice’s signal is not only dependent upon the institutional requirement that
cases need to be brought to the Court by other parties, but the signaled, now litigated, argument also
has to be accepted by four other members in order to become binding. Under this light, the signal
should not have been tried and rejected, but needs to possess new elements of argumentation with
which litigants can add to the legal discourse, which is a qualification that strategic minority opinions
satisfy. Here, the rational choice model of decision-making (Epstein and Knight 1998) takes on a
two-step process where pursuing one’s policy preferences, while navigating institutional constraints,
means that litigants attempt to correct errors on the basis of what a justice’s signaled preferred
policy is, in hope that it will be a more persuasive tool than others for that justice’s network as well.
Repeating the signal back to the Court in subsequent litigation allows the signal to acquire more

54
Shapiro borrows terminology from communications theory to show how signals are transmitted and
confirmed through signal repetition by recipients. When applying this language to courts and legal actors, we
see that confirmation messages ascertain the acceptance of the signal as a valid point of view or rationale.

104
salience and validation as an appropriate solution, which can perform better towards achieving the
5-justice majority needed.
It is important to note that this study is not motivated by the legal persuasion model (see
Spriggs and Wahlbeck 1997). While litigants, judges, as well as the author, regularly refer to legal
argumentation as persuasive dialogue, it is not theorized that specific language or the “correct” legal
arguments are the porters of legal change because they are persuasive in and of themselves, but that
original arguments signaled by justices can become the vehicle of change because they popularize
the logic included and appear at a later time when personnel configurations in the Court may be
more conducive towards attaining the desired policy outcome. The legal persuasion model asserts
that in order to reach the correct decision, justices not only apply precedent, but explore alternative
tests and interpretations of precedent; nevertheless, they remain impartial to specific policy
outcomes and so make their decisions on the basis of the most correct outcome pending
consideration of societal implications (Kearny and Merrill 2000). This theory, however, does not
explain why justices promote their own alternative policy preferences via strategic minority opinions
and why they openly insist on these preferences even when they have been repeatedly rejected as
non-persuasive by their colleagues.
Similarly, the attitudinal model of judicial behavior which does view judicial decision-making as
politically motivated (Segal and Spaeth 2002) with justices voting on their sincere policy preferences,
does not account for the dimension of strategizing in either of the two phases of issuing strategic
minority opinions, counting on litigants to receive the signal, and then choosing to either bargain
with colleagues to adopt the signaled argumentation, or silently adopting it.

3.4. Hypotheses
The rational choice model of judicial behavior in combination with the theory of triadic

105
dispute resolution lay the foundation for examining the effects of strategic minority opinions within
the institutional environment they appear and, subsequently, inform the testing of a number of
hypotheses. Overall, I argue that because of the signaling qualities they possess and the dialogue-
based nature of the U.S. adversarial legal system, strategic minority opinions fare better at the
endeavor of legal/policy change than non-strategic ones.
At the outset, sophisticated litigants, such as those usually appearing before the land’s highest
and appellate courts, are highly attuned to signals and messages from decision-makers in minority
opinions and will employ such offered argumentation in their strategy. The words of an experienced
in Circuit Court litigation attorney are instructive:
“Minority opinions are useful especially when the law is unclear, or the 9th Circuit has an
interpretation that has not been addressed by the Supreme Court, that is maybe picking up on
something that is in a minority opinion. The reason we would use (minority opinions in our
strategy) is to tell the Court ‘if you make this ruling again, there could possibly be a majority on
the Supreme Court that will affirm you’, that ‘you have allies up there that will support this
argument’…There is no specific place for (a minority opinion), but to be relevant, it would have
to be one of the key arguments. It would not be a secondary, throw-away argument... Because you
do have limits on what you can write and the judges don't like a lot of extras, so, attorneys try to
make every sentence count…using a minority opinion would require some explanation. If I were
strategizing or overseeing another attorney, I would expect it to be in a key argument position.”
(Interview with participant A2, 3/28/2017)

Because strategic minority opinions possess the qualities that could render them winning
arguments and, therefore, the potential for occupying a central position in a merits brief, the first
hypothesis states:
Hypothesis 1: Strategic minority opinions will be used as arguments by litigants in relevant subsequent cases at a
higher rate than non-strategic ones.

Apart from the conversational satisfaction provided to those affected by the outcome of
Supreme Court cases, and the softening of disappointment caused by adverse decisions offered via
concurring and dissenting opinions (Bennett 2001), strategic minority opinions force other justices
into a dialogue with points they did not consider or did not wish to consider, inciting them towards
engaging carefully with the presented points, and signaling willingness to modify or overrule

106
doctrine in the future. It is, therefore, appropriate to consider the repetition of strategic minority
opinions not only as a reminder that someone is on the losing litigant’s side and on the side of those
similarly situated, but as a way of “keeping the possibility of overruling in the future alive among the
Court’s audience” (2001: 887) and a proper call to action for future litigants and decision-makers.
Contrary to the claim that justices’ repetition of minority opinions departing from set precedent is
self-indulgent behavior (Bennett 1990, Hettinger et al. 2003, 2004), there is evidence for the above
functions because justices do not “get punished” for these constant aberrations from the majority
opinion and what is deemed as stare decisis. The Court’s audience rather enjoys the multitude of
opinions because it finds a reason and a use for them. Accordingly,
Hypothesis 2: Strategic minority opinions are more systematically repeated by Supreme Court justices in subsequent
litigation than non-strategic ones.

Generally, through separate opinion-writing justices express their opinion about what is wrong
with the majority’s logic and present their reasons for claiming so (Kelsh 1999). Strategic minority
opinions take this endeavor a step further by offering argumentation that has been not yet dealt with
and rejected by the Court. To construct this new basis for reasoning, the opinions usually contain
significant additional research by the justices’ law clerks and themselves, which pose novel and
evolved argumentation frameworks for the Court as an ensemble to reckon with in a future setting.
Strategic minority opinions amplify the choices in strategy that litigants enjoy when they want to
effect doctrinal change, either in the overt manner of overruling precedent or in more tacit ways by
narrowing/qualifying precedent. Cases where special concurrences
55
have been filed, for example,
are more likely to be overruled in the future because they lower the credibility of a precedent and
offer alternative legal rationales (Spriggs and Hansford 2001). TDR predicts that change in legal
policy change is promoted in the dynamic jurisgenerative arena of litigation, where judges and

55
Special concurrences add to the majority opinion’s logic but are not binding. In fact, many strategic
concurrences belong in this category.

107
litigants participate in dialogue. When litigants employ signaled logic, they act on the basis of having
at least some member of the Court on their side and their reasoning enjoys by default a certain level
of legitimacy among justices, which renders it more persuasive. Nevertheless, majority opinion
authors can also adopt the logic set out in strategic minority opinions on a sua sponte basis, either as
a way of convincing the authors of those signals to join their coalition, or because they are the
authors of the signals themselves and they manage to insert their prior stance into this new iteration
of settling a particular legal issue without incurring significant opposition. The example of J.
Kennedy incorporating in Wayfair J. Gorsuch’s concurrence, from the latter’s 10
th
Circuit days,
attests to the flexibility justices possess in shaping their argumentation in a way that accommodates
bargaining among the justices. Based on these expectations:
Hypothesis 3: Strategic minority opinions are more likely to be adopted into majority opinions in subsequent litigation
than non-strategic ones.

Finally, because strategic minority concurrences and dissents aim more clearly at error
correction, they pose a better option for litigants to achieve such correction sooner than later, before
precedents are strongly established. The influx of a greater number of new suits containing signaled
argumentation after Supreme Court justices release “consequential” minority opinions is also a
theme arising in interviews with federal lower court law clerks, so I expect that strategic minority
opinions, which enjoy a greater propensity for being adopted, would do so in less time on the basis
of vigilant litigants seizing the opportunity of new argumentation. From the previous, I expect that:
Hypothesis 4: Strategic minority opinions are more quickly adopted into majority opinions than non-strategic ones.

3.5. Data, Methods, and Measurements

To test the above hypotheses, I employ a novel database of all minority opinions by Supreme
Court justices published in the 1980-2010 terms, modeled after the Spaeth Supreme Court Database
(2013) (see Chapters 1&2). The dataset contains 4,753 minority opinions- 2,819 dissents and 1,934

108
concurrences with each row in the database representing one minority opinion. Through content
analysis of the doctrine/precedent/logic of the minority opinions and comparison of each one with
the majority opinion for that case, I collected and coded all minority opinions as to their strategic
status; 0 for non-strategic and 1 for strategic
56
. This informs one of the main explanatory variables of
this chapter featured in all four hypotheses, Strategic Status.
In Hypothesis 1, the dependent variable of interest is Signal Brief, which is binary and is coded 0
for when litigants do not use the minority status logic in their merits briefs in subsequent Supreme
Court litigation and 1 for when litigants use the argument of that minority opinion. I operationalize
“use” of the minority opinion logic as citations by litigants to the authoring justice, minority and
page of the opinion from the term it was authored until the end of the 2017 term (June 2018).
Attorneys in their construction of argumentation to the Supreme Court opt for including powerful
points, which should also enjoy some legitimacy, and would not employ the logic of a minority
opinion without citing the element that affords it such legitimacy, i.e. its author. Litigants do not use
reasoning that is not based on precedent or some other prestigious source, so they would be
discouraged from using argumentation that may come from minority opinions without letting the
Court know. Additionally, litigants that employ minority opinions as focal points of their
argumentation attempt to address and persuade specific justices or coalitions of justices, so in this
sense, following the trail of citations to minority opinions gives an accurate portrayal of how broad
that practice this. The choice to use a binary variable to measure this, instead of a count variable for
example, also needs highlighting; merits briefs in Supreme Court litigation are usually available on
professional legal databases, but not all of them are. Counting how many times a minority opinion
was used in merits briefs would not produce a very accurate measurement, while a count variable

56
The text of the full opinions was retrieved from Lexis Advanced.

109
would bias results in favor of older minority opinions, which benefit from more terms of subsequent
litigation and therefore, more opportunities to be cited in upcoming cases.
To test the second hypothesis, the dependent variable is Signal Repeat, a count variable that
measures how many times after its authorship, a justice on the Supreme Court used the
argumentation of the minority opinion in question, either as majority opinion material or as
repetition of the argumentation in minority opinions. The previous logic applies here; repetitions
were counted from the moment the minority opinion in question was first issued until the end of the
2017 Supreme Court term. The model tested in this hypothesis uses Poisson regression, because it
counts discrete occurrences in discrete trials.
The next constructed variable, Signal Adopt, is coded 1 if a minority opinion from the moment
of its publication till the end of the 2017 Supreme Court term has been adopted into the majority
opinion on the basis of citation by justices, and 0 otherwise. Adoption of the minority opinion logic
has been measured either as explicit overruling of precedent or silent incorporation of that logic into
the majority. As the justices themselves claim (Garner 2010a, Ginsburg 1995), they are reluctant to
declare the overruling of stare decisis, unless sociopolitical changes or technological advances, for
example, have shown to create adverse or unjust outcomes, which nullify the logic of stare decisis
itself. More often, justices qualify or narrow precedent when litigants are asking to revisit issues, and
strategic minority opinions offer a path for doing that without causing an avalanche of new
outcomes. Moreover, justices who authored minority opinions, but find themselves in the position
of majority opinion author at a later time, have more leeway of including the logic delineated in their
prior minority opinions, thus shifting doctrine at a small pace. Adding to the practice of tacit
incorporation, majority opinion authors who wish to convince their colleagues to join their coalition
move their position towards previous minority opinion authors by integrating those dissents and

110
concurrences into the majority (Rohde 1972, Spriggs et al. 1999, Spriggs and Hansford 2001,
Wahlbeck 1997, and others).
Hypothesis 4 uses the new variable Time Adopt, which is a count variable that measures how
many terms after the minority opinion was issued, that minority opinion was adopted by the
majority. This variable is limited to those observations for which Signal Adopt has been coded as 1
and the range of terms covered is effectively from 1981 to 2017. To test whether there is meaningful
difference between strategic and non-strategic minority opinions, I use a difference of means test for
the average time of adoption of each category of minority opinions.
Several control variables are also included the first three models. To capture effects of
ideological tendencies, I control for Author Ideology, a variable borrowed from the Judicial Common
Space project. The ideological scores on JCS range from -1 being the most liberal, to 1 being the
most conservative. I also construct a dummy variable labeled Intensity of Ideology from the same
dataset, where 1 represents authors of minority opinions which score beyond the average for their
ideological camp and 0 for those authors who score below the average and closer to the moderate
value of 0. In other words, one category includes both ideologically extreme conservatives and
extreme liberals, while the other includes the moderates. On one end, this accounts for nuance in
the intensity of ideological preferences and compares moderates to extremes, not only liberals to
conservatives. More importantly, it controls for the probability that litigants, for example, use
minority opinions from specific ideological positions or target justices with specific tendencies.
Elsewhere, these variables control for the probability that specific ideological tendencies or centrist
vs. extremist justices achieve more with their minority opinions than others or insist more on their
own views.
Pursuing more possible effects of a behavioral nature, I include the control variable Terms Left
in some models. This count variable measures the number of terms that the minority opinion author

111
stayed onto the Court after her minority opinion was published, in an effort to capture any effect
from the part of litigants targeting specific justices by using the latter’s minority opinions as a
method of persuasion. Furthermore, it is important to check whether each minority opinion was
featured in a case with a majority or plurality coalition, since pluralities pose unstable legal
foundations and invite further litigation to solve the dilemmas that inherently arise. In this vein,
transformation of a minority opinion into binding doctrine, continuous signaling by a justice, or
prodding by litigants may all be affected by such coalition configurations. This check is run through
the dummy variable Plurality, which was coded 1 for when the minority opinion was featured in a
plurality decision and 0 for all other cases when the Court reached a majority decision.
Institutionally, I control for Vagueness of the law considered in each case, coded 1 when the
author justice of the minority opinion claims the law before her is vague
57
, 0 otherwise. There is
good reason to suspect that pronouncements of vague legal frameworks by justices invite more
challenges by litigants and that subsequent minority opinions will capitalize on that to move legal
interpretations towards a more desirable position. Vagueness of the law, even if decreed by justices
alone, is crucial in making for complex cases with a multitude of opinions (Ginsburg 1990). In a
similar vein, cases that handle constitutional issues, apart from dealing with remarkably arcane legal
provisions, are fundamentally based on justices’ interpretations of the doctrine and any sort of
development in that area of law is expected to take place in the courtroom. Not only justices are
afforded more flexibility in structuring their argumentation in these cases, but litigants are more
inclined to make use of any tool they may have to influence decision-makers when the case involves
constitutional provisions. Under this light, I control for differences in the type of law considered in
each case where a minority opinion appears and their possible effect on the goals of a minority

57
To afford vagueness status, a justice needs to mention one of these words in relation to the statute or law:
vague, abstract, ambiguous, confusing or confusion, unclear-not clear, lacks clarity, obscure, uncertain,
imprecise (language), and their derivatives.

112
opinion strategist. To do this, I employ a dummy variable labeled Constitutional Issue, coded 1 when
the area of law the case pertains to is constitutional, and 0 when the case involves statutory
interpretation.
As a final point, while this chapter uses quantitative analysis to test for the above hypotheses, it
has also been greatly informed by qualitative interviews with members of legal elites. Quantitative
analysis, while more suitable for large-N analysis that aims towards revealing which variables are of
importance for certain relationships, is not suited for uncovering processes, which may hold several
unknown variables and factors. On the other hand, qualitative analysis may aid in refining
hypotheses and highlighting assumptions to be tested empirically (Perry 1991: 8), which has been the
case in this project as well. In the process of compiling this chapter, the author interviewed a small
number of attorneys with experience in federal appellate court litigation and federal court law clerks.
The interviews were semi-structured, lasted between 30-60 minutes and followed two different
question protocols for law clerks and attorneys respectively. The questions were open-ended, which
allowed informants to bring up issues they deemed important and, simultaneously, allowed the
interviewer to follow up on crucial remarks that informants made.
Both protocols
58
started with general questions to propel narratives on daily processes,
professional expectations, and professional realities, but went on to focus on construction of
argumentation, sources of information, and prioritization of arguments in a given case. The goal of
the interviews was to reveal processes and choices that justices, law clerks, and attorneys make with
regards to innovative legal writing and minority opinions. To this end, the information gathered was
mostly instructive with regards to district and circuit court litigation, and the place of minority
opinions in such litigation, and less so with regards to Supreme Court litigation
59
, a point which begs

58
IRB approval identification number: UP-17-00127.
59
The district courts predominantly deal with fact-finding and are not often asked to rule on, for example, the
constitutionality of statutes. Cases with a lot of gray areas, where precedent is not that illuminating, or cases

113
the indispensable expansion of this project to lower federal court analysis. Nevertheless, themes
pertaining to Supreme Court litigation and opinion and brief writing that emerged from the
interviews are featured here and generally inform hypotheses, expectations, variables of interest, as
well as a more in-depth understanding of the use and success of strategic minority opinions as a tool
of judicial policy-making and legal change.

3.6. Results
The results of the first logistic regression model appear in Table 3.1. and confirm the first
hypothesis. Strategic Status is significant at 0.01 level and moving in the expected positive direction,
which shows that strategic minority opinions enjoy a greater probability of being cited in litigants’
briefs than non-strategic minority opinions. Looking at the control variables for that model,
proclaimed vagueness of the law or doctrine by the justice is also correlated with the appearance of
minority opinion in merits briefs, as well as if the original case was decided by a plurality; both
expected institutional dimensions with regards to influencing litigant strategy in favor of minority
opinions. As for characteristics of the signaling justice, results show that authors of minority

involving the constitutionality of laws are more likely to draw argumentation based on signals by justices, as
reflected in LC3’s narrative.
LC3: “…The district court is bound by the Circuit Court and the Supreme Court. At the district
court, there isn't much room for incorporating minority opinions, there isn't a point to it, in the
sense that the (district) court's job is to follow precedent. Litigation in the district court is so
fact-intensive that the judge has to determine "Was my case more like this case or that case? Or
the other one?"... When litigants pay attention to minority opinions that offer a different
standard or test, it's going to be on the kind of 'once in a lifetime' case. So, my judge ruled the
"Don't Ask, Don't Tell" policy, that barred LGBT people from the armed forces,
unconstitutional. She was the district court judge that ruled that. At that time, 2010, there had
been some cases that talked about this, so she drew from cases like Lawrence v. Texas, 2003, which
ruled that there is a privacy interest. In that case she used all of the concurring and the majority,
but really, there had to be that majority opinion in Lawrence for a district court judge to come
out that way. Because it was not based on equal protection, it was based on substantive due
process, and then O'Connor came out and added the equal protection basis in the concurring
opinion. So, my judge incorporated that in there. But those types of cases, again, are
rare…because most of the cases in the federal courts are disputes between businesses...”
(Interview with district court law clerk, April 28
th
, 2017.)

114
opinions who are more conservative ideologically inspire more citations by litigants, which could be
explained by the generally conservative ideological leanings of the Supreme Court in the almost 40
years studied here (Bailey 2013, Martin and Quinn 2007). With the ideological median on the Court
shifting more and more conservatively, it is expected that litigants will attempt to address those
justices who can also garner a majority coalition. Additionally, litigants cite more minority decisions
of justices who stay on the Court longer and can influence collegial decision-making from a vantage
point, instead of relying on minority opinions of justices who have departed. Finally, whether the
author of the minority opinion is ideologically extreme or moderate and whether the case features
statutory construction or constitutional interpretation does not seem to influence litigant strategy
based on the model’s results.
----------------- TABLE 3.1 ABOUT HERE -----------------

Table 3.2 featuring the next Poisson regression model also confirms the Hypothesis 2. It was
argued that strategic minority opinions will be repeated at a higher rate than non-strategic ones
either by their authors or by persuaded colleagues, and the model shows Strategic Status to be
significant at the 0.01 level moving in the expected positive direction. Other factors that seem to
positively affect the repetition of signals are when the issue involves constitutional interpretation,
when the signaling justice claims the doctrine is vague, and when it has been featured in merits
briefs. Moreover, looking at possible justice-specific effects, as is expected the more a justice stays
on the Court, the more the signal is repeated and the more ideologically conservative the author is
the more repetition of minority opinion is expected. Again, Author Ideology follows a two-tailed test
basis, unlike most of the other variables, because while ideology is one of the important predictors
of behavior generally, there was no definite expectation tied to specific ideological tendencies. Its
continuous statistical significance, however, points to its centrality. From Chapter 1, it has also been

115
established that conservative justices issue more strategic minority opinions, so observing signal
repetition by the same category of justices is not out of the ordinary here. On the other hand,
intensity of ideology and whether the case featured a plurality of justices do not pose a significant
statistical relationship with the frequency of minority opinion repetition.
----------------- TABLE 3.2 ABOUT HERE -----------------

Moving on to test Hypothesis 3, I find strong support that strategic minority opinions are more
likely to be adopted by a majority in the future than non-strategic ones as is shown by the results of
the logistic regression model in Table 3.3. The variable of interest is statistically significant at 0.01
level and moving in the expected positive direction. Additionally, the model shows that minority
opinions are more likely to be adopted later when they are featured in litigants’ merits briefs, when
the author of the minority opinion is has extreme ideological tendencies (surpasses the mean for the
ideological camp they belong in), and that author is conservative. This is the only model where
Intensity of Ideology seems to play a role. Furthermore, the longer a justice stays on the court after a
minority opinion is issued, the more likely it is that the minority opinion gets adopted. There is also
loose support that when the case where the minority opinion was first featured is a plurality, it is
likelier that the minority opinion will turn into binding doctrine. However, this last variable is
significant at the 0.1 level. Vagueness of the doctrine and dealing with constitutional interpretation in
the original decision are not significant in this model.
----------------- TABLE 3.3 ABOUT HERE -----------------

Figure 3.4 shows the predicted probabilities for adoption of a minority opinion when that is
strategic versus non-strategic, and when it has been included in the litigant’s merits brief compared
to its absence. A strategic minority opinion has a 5%-point probability being adopted by the majority

116
when it has not been included in the petitioner/respondent’s strategy, whereas a non-strategic
opinion that is also not included in the litigant’s brief has a 1%-point probability of being adopted.
When minority opinion reasoning is included in merits brief, strategic minority opinions have a
32%-point probability of being adopted in the future compared to a 20%-point probability for non-
strategic ones. Regardless of litigant strategy, non-strategic minority opinions have a 10%-point
probability of being adopted, whereas strategic minority opinions double that probability to 20%.
----------------- FIGURE 3.4 ABOUT HERE -----------------

The final hypothesis regarding the Time Adoption of a minority opinion, however, cannot be
confirmed. The difference-of-means test for the average time of adoption between strategic minority
opinions and non-strategic ones shows no significant difference between the two (an average of 6.5
terms needed for a non-strategic minority opinion to be adopted compared to an average of 6 terms
for a strategic minority opinion). For this test, only the sample of minority opinions which were
adopted is calculated, which is effectively smaller than the universe of minority opinions that the
other models test
60
; therefore, adding more observations into the future could reveal different
relationships.

3.7. Discussion
By design, the US adversarial system is an iterative game that allows for regulated change and
evolution (Shapiro and Stone Sweet 2002). Fundamentally, there is a clash between what litigants
want and how the institutional setup deals with continuity and requests for change, and we see this
clash between what we claim and how we act as an inherent characteristic of the U.S. judicial system.
It is a system built to promote and shaped by dialogue, and strategic minority opinions address that

60
Approximately, 1/7
th
of all minority opinions are adopted by a subsequent majority decision.

117
characteristic; they may not alter the parameters of our legal-institutional reality at the time of their
pronouncement, but they breed dialogue in predetermined, acceptable ways that do not outright
disturb consistency of judicial rules and expectations of legitimated authority, yet breed fertile
ground for legal/policy change propelled by citizens-litigants themselves. They allow for not only
acceptable alterations in precedent, but desirable ones, sustaining the image of the least dangerous
branch, which despite being “non-majoritarian” (Bickel 1986) can be moved by majoritarian pleas
adjusting to sociopolitical demands and by “suffering minorities” (Dahl 2001), who have been
wronged.
Judicial dialogue is usually thought of as a process of cooperation and professional networking
among judges in the international level (Slaughter 2004), but there exists an intranational type of
judicial dialogue that takes place among judges, between the judiciary and citizens, and between the
judiciary and other branches. If this dialogue happens to bear fruit, we need to see through what
means, how much, at what rate. This chapter builds upon the idea of the latter type of judicial
dialogue and shows that strategic minority opinions are a judicial tool for legal and policy change by
promoting persuasive dialogue. The comparison here is not between majority and minority opinions;
majority opinions have already accomplished their goal, and, because of TDR’s nature, they have
more or less satisfied one part of the dispute and let down the other. If minority opinions are
written with an eye to the future, so as to possibly satisfy those on the losing side, the need is to
observe how minority opinions achieve this, which necessarily begs a close look into the nature and
type of minority opinions. It has been theorized that strategic minority opinions accomplish pleas
for change; this chapter shows whether and how they do this by building upon the institutional
framework set the U.S. adversarial system and the rational choice model of judicial decision-making.
Strategic concurrences and dissents contain argumentation that has not been discussed or
reviewed by the majority coalition in a given case. This chapter poses the question of what happens

118
after a justice authors a strategic concurrence or dissent; is the strategy visible by litigants? Is it
successful for litigants to use this signaled strategy compared to arguments that have already been
considered by the Court in order to promote legal change? The Supreme Court is the focal point of
this thesis because this is where most change is expected to take place, where the constitutionality of
statutes, etc. is reviewed. In the interviews, law clerk informants acknowledged that a consequential
minority opinion in the Supreme Court is followed by an increase in cases arguing on the basis of
the signaled doctrine, yet were reluctant to claim lower court judges pay that much attention to such
arguments. As one law clerk explained: “We do not have time for innovative or lofty arguments in
the circuits.”
61
District and Circuit Courts primarily deal with fact-finding intensive cases, not
doctrine-shaping ones. This restriction is also reflected in S. Dakota v. Wayfair, where the state’s
litigants consistently included in their briefs J. Kennedy’s strategic concurrence as a main point, but
lower and state courts which reviewed the case before reaching the Supreme Court exclaimed they
were bound by precedent and the argument for overturning Quill should be reviewed by the
Supreme Court, if it so inclined
62
, lending support to the interviewees’ claims that their bosses’
hands are relatively tied by precedent and so cannot appropriately take advantage of signaled
argumentation, even if it comes from the highest court itself. Therefore, as a first step towards
studying the effect of strategic minority opinions, looking at litigation on the Supreme Court is more
appropriate.
This study also limits itself to what happens after a signal is emitted from the decision-making
body itself, because it is not a question whether justices borrow parts they like from litigant or
amicus curiae briefs
63
; there is abundant research indicative of this. It is a question of whether it

61
Interview with Circuit Court law clerk CLC1, April 3
rd
, 2017.
62
See opinion by J. Severson, Supreme Court of South Dakota, State v. Wayfair, Inc., 2017 SD 56.
63
For the effects of amicus curiae briefs on Supreme Court opinions, see the extensive research by Collins
(2004) and for merits briefs, indicative is the research by Corley (2008).

119
helps them promote their policy goals when the signaled points are brought up by litigants, making
this into a top-down or elite approach of legal diffusion. It is established that justices may very well
use argumentation, as signals travel vertically and horizontally; nevertheless, the focus of this study is
what happens when the starting point lies with a justice who is offering an authoritative, substantive
opinion.
As exemplified by the Wayfair case, J. White’s strategic dissent in Quill and J. Kennedy’s strategic
concurrence in Brohl managed to initiate a dialogue about what the correct interpretation of the
dormant commerce clause would be in the 21
st
century and conclude that dialogue with what once
had garnered only minority support. The case is an illustration of an issue that most legislative
members in their states wished to solve, but Congress did not approach, and courts initially
acquiesced to until it became important enough of a problem. In 1992’s Quill, the problem was mail-
order commerce, which while relatively popular, did not surpass $180 billion in sales worth at that
moment in time. In 2015, when Brohl was considered, e-commerce had reached $3.16 trillion in
worth- an immense figure. The courts were pressed into changing the legal framework and making
policy; and a fundamentally regulatory decision it was, because there is little that is more political
than deciding who will be taxed and who will be not, an outcome that Congress had been silent on
for more than two decades. Writing for the Wayfair majority, and so as to demonstrate the physical
presence test’s artificiality and the need for reconsideration of the doctrine, J. Kennedy went so far
as to claim that the fact that visiting online websites leaves “cookies” in the user’s personal computer
may very well establish the physical presence nexus required for state taxation of interstate
commerce.
64

Looking to the future, this study would benefit by adding case salience measurements; the
interviews with attorneys and law clerks highlighted that, in lower courts, what may be of

64
Kennedy, 138 S. Ct. at 2096 (2018).

120
importance with regards to the use of strategic minority opinions is the prominence of the issue
which propels justices to write innovatively or borrow innovative reasoning. That may be the case
with lower courts which eventually will need a higher court to affirm their reasoning, however, in the
Supreme Court, implementing legal change quite often is performed without attracting too much
attention. Justices who concur and dissent strategically do not wish to alienate their colleagues, as
they will need them in the future when they find themselves in the majority once again. Apart from
this dimension, it would be illuminating to see if friends of the Court pick up on justices’ signals and
reiterate them in amicus curiae briefs in subsequent litigation. Finally, because the breadth of
opinions studied here is expansive, it was not possible to look into lower court adoption of signals
or litigant argumentation containing strategic concurrences and dissents originating in the Supreme
Court, except for specific legal issues. It is essential to afford a more through look into the federal
district and/or circuit court level, with the caveat that litigant briefs are inconsistently, and in some
cases sparsely, available for lower court litigation.
Overall, this study’s contribution to our understanding of minority opinions is that a specific
type, labeled strategic, is more visible to and practical for litigants; attorneys are more likely to use
strategic concurrences and dissents in their argumentation. Additionally, it is shown that strategic
minority opinions are more often repeated on the U.S. Supreme Court by their authors themselves
and their colleagues than non-strategic ones. Finally, and most importantly, strategic minority
opinions lead to higher rates of legal change and this, in fact, occurs at double the rate for non-
strategic ones.
65
The implications of these findings offer an answer to what so far had been a
normative consideration of the potential of minority opinions, in general, to affect future legal
change.

65
Strategic minority opinions have a 20% probability of being adopted into a majority opinion, compared to a
10% probability for non-strategic ones.

121
3.8. Bibliography

Bailey, Michael. 2013. “Is Today’s Court the Most Conservative in Sixty Years? Challenges and
Opportunities in Measuring Judicial Preferences.” The Journal of Politics, Vol. 75, No. 3, pp. 821–
834.

Baird, Vanessa and Tonja Jacobi. 2009. “How the Dissent Becomes Majority: Using Federalism to
Transform Coalitions in the U.S. Supreme Court”. Duke Law Journal. Vol. 59, No. 2, pp. 183-
238.

--------- 2009. “Judicial Agenda-Setting Through Signaling and Strategic Litigant Responses”. Journal
of Law and Policy. Vol. 29, pp. 215-225.

Bennett, Robert. 1990. “Styles of Judging.” Northwestern University Law Review, Vol. 84, No. 3, pp.
853–855.

Bennett, Robert. 2001. “Counter-Conversationalism and the Sense of Difficulty”. Northwestern
University Law Review, Vol. 95, No. 3, pp. 845–906.

Bickel, Alexander. 1986. The Least Dangerous Branch. New Haven, CT: Yale University Press

Brennan, William, Jr. 1986. “In Defense of Dissents.” Hastings Law Journal, Vol. 37, No. 3, pp. 427-
438.

Burke, Thomas. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society.
Berkeley: University of California Press.

Collins, Paul. 2004. “Variable Voting Behavior on the Supreme Court: A Preliminary Analysis and
Research Framework”, Justice System Journal, Vol.25, No. 1, pp. 57-74.

Collins, Paul. 2008. Friends of the Supreme Court: Interest Groups and Judicial Decision Making. New York:
Oxford University Press.

Collins, Paul, and Wendy Martinek. 2015. “Judges and Friends: The Influence of Amici Curiae on
U.S. Court of Appeals Judges.” American Politics Research, Vo. 43, No. 2, pp. 255–282.

Corley, Pamela. 2008. “The Supreme Court and Opinion Content: The Influence of Parties' Briefs.”
Political Research Quarterly, Vol. 61, No. 3, pp. 468-478.

Corley, Pamela. 2010. Concurring Opinion Writing on the U.S. Supreme Court. State University of New
York Press.

Corley, Pamela, Paul Collins, and Bryan Calvin. 2011. “Lower Court Influence on U.S. Supreme
Court Opinion Content.” The Journal of Politics, Vol. 73, No. 1, pp. 31-44.

Corley, Pamela and Justin Wedeking. 2014. “The (Dis) Advantage of Certainty: The Importance of
Certainty in Language.” Law and Society Review, Vol. 48, No. 1, pp. 35-62.

122
Dahl, Robert. 2001 (1957). “Decision-making in a Democracy: The Supreme Court as a National
Policy-maker.” Emory Law Journal, Vol. 50, No. 2, pp. 563–582.

Editorial, “Time to Tax Online Sales”. The Columbian (Vancouver, Washington), March 18, 2015.

Epstein, Lee. 1993. “Interest Group litigation during the Rehnquist Court Era”. Journal of Law and
Politics, Vol. 9, No. 4, pp. 639-717.

Epstein, Lee, and Jack Knight. 1998. The Choices Justices Make. Washington, DC: CQ Press.

Epstein, Lee, Andrew D. Martin, Jeffrey A. Segal, and Chad Westerland. 2007. “The Judicial
Common Space,” 23 Journal of Law, Economics, and Organization, 303.

Epstein, Lee and Joseph Kobylka. 1992. Supreme Court and Legal Change: Abortion and the Death Penalty:
Abortion and the Death Penalty. University of North Carolina Press.

Farhang, Sean. 2008. Public Regulation and Private Lawsuits in the American Separation of Powers
System. American Journal of Political Science, Vol. 52, No. 4, pp. 821–39.

---------- 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, N.J.:
Princeton University Press.

Galanter, Marc. 1983. “The Radiating Effects of Courts”, in Empirical Theories about Courts, ed. Keith
O. Boyum and Lynn Mather. New York, NY: Longman.

Garner, Bryan. 2010a. “Interviews with United States Supreme Court Justices.” Scribes Journal of Legal
Writing, Vol. 13, pp. 1- 182.

Garner, Bryan. 2010b. “Justice Antonin Scalia.” Scribes Journal of Legal Writing, Vol. 13, pp. 51-77.

Ginsburg, Ruth Bader. 1990. “Remarks on writing separately.” Washington Law Review, Vol. 65, pp.
133-150.

Ginsburg, Ruth Bader. 1992. “Speaking in a Judicial Voice.” New York University Law Review, Vol. 67,
No. 6, pp. 1185-1209.

Ginsburg, Ruth. Bader. 1995. “Communicating and Commenting on the Court’s Work.” Georgetown
Law Journal, Vol. 83, pp. 2119-2128.

Hathaway, Oona. 2001. “Path dependence in the law: The Course and Pattern of Legal Change in a
Common Law System.” The Iowa Law Review, Vol. 86, No. 2, pp. 601-665.

Hazen, Brian. 2013. “Rethinking the Dormant Commerce Clause: The Supreme Court as Catalyst
for Spurring Legislative Gridlock in State Income Tax Reform.” Brigham Young University Law
Review, Vol. 2013, No. 4, pp. 1021-1059.

Hellman, Arthur. 1982. “Error correction, Lawmaking, and the Supreme Court's Exercise of
Discretionary Review.” University of Pittsburgh Law Review, Vol. 44, No. 4, pp. 795-877.

123

Hettinger, Virginia, Stefanie Lindquist, and Wendy Martinek. 2003. “Separate Opinion Writing on
the United States Courts of Appeals.” American Politics Research, Vol. 31, No. 3, pp. 215–250.

---------- 2004. “Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S.
Courts of Appeals.” American Journal of Political Science, Vol. 48, No. 1, pp. 123-137.

Kagan, Robert. 2001. Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard
University Press.

Kearny, Joseph, and Thomas Merrill. 2000. “The Influence of Amicus Curiae Briefs on the Supreme
Court.” University of Pennsylvania Law Review, Vol. 148, No. 3, pp. 471-488.

Kelsh, John. 1999. “The Opinion Delivery Practices of the United States Supreme Court, 1790-
1945.” Washington University Law Quarterly, Vol. 77, No. 1, pp. 137-181.

Lebovits, Gerald, Alifya Curtin, and Lisa Solomon. 2008. “Ethical Judicial Opinion Writing.”
Georgetown Journal of Legal Ethics, Vol. 21, No. 2, pp. 237-309.

Liptak, Adam. "Upholding Internet Sales Tax Law, a Justice Invites a New Case." New York
Times, Mar 04, 2015, Late Edition (East Coast).

Lupu, Yonatan and James H Fowler. 2013. “Strategic Citations to Precedent on the US Supreme
Court.” The Journal of Legal Studies, Vol. 42, No. 1, pp. 151-186.

Martin, Andrew and Kevin Quinn. 2007. “Assessing Preference Change on the US Supreme
Court.” The Journal of Law, Economics, & Organization, Vol. 23, No. 2, pp. 365–385.

Murphy, Walter. 1964. Elements of Judicial Strategy. Chicago: University of Chicago Press.

Pang, Xun, Barry Friedman, Andrew D. Martin, and Kevin M. Quinn. 2012. “Endogenous
Jurisprudential Regimes.” Political Analysis, Vol. 20, No. 4, pp. 417-436.

Perry, H. W. 1991. Deciding to Decide: Agenda Setting in United States Supreme Court. Boston, MA:
Harvard University Press.

Pierson, Paul. 2000. “Increasing returns, Path Dependence, and the Study of Politics.” The American
Political Science Review, Vol. 94, No. 2, pp. 251-267.

Powell, Lewis. 1984. Briefing Notes Law Clerks. Available in Justice L. F. Powell’s papers, Box 130a.
Lexington, VA: Washington and Lee Law Library.

Peterson, Steven. 1981. “Dissent in American Courts.” Journal of Politics, Vol. 43, No. 2, pp. 412-434.

Rohde, David. 1972. “Policy Goals, Strategic Choice and Majority Opinion Assignments in the U.S.
Supreme Court.” Midwest Journal of Political Science, Vol. 16, No. 4, pp. 652-682.

124
Sandholtz, Wayne. 2012. “Treaties, Constitutions, Courts, and Human Rights”. Journal of Human
Rights, Vol. 11, No. 1, pp. 17-32.

Scalia, Antonin. 1994. “Dissenting Opinions”. Journal of Supreme Court History, Vol. 1994, pp. 33-44.

Segal, Jeffrey and Harold Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited.
Cambridge, UK: Cambridge University Press.

Silverstein, Gordon. 2009. Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. New York:
Cambridge University Press.

Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. University of Chicago Press.

Shapiro, M. and Stone Sweet A. (2002) On Law, Politics, and Judicialization. Oxford, New York: Oxford
University Press.

Slaughter, Anne-Marie. 2004. A New World Order. Princeton, N.J: Princeton University Press.

Spaeth, Harold J. 2016. The Supreme Court Database. Center for Empirical Research in the Law at
Washington University.

Spriggs, James and Thomas Hansford. 2001. “Explaining the Overruling of U.S. Supreme Court
Precedent.” The Journal of Politics, Vol. 63, No. 4, pp. 1091–1111.

Spriggs, James, and Paul Wahlbeck. 1997. “Amicus Curiae and the Role of Information at the
Supreme Court.” Political Research Quarterly, Vol. 50, No. 3, pp. 365-386.

Spriggs, James, Forrest Maltzman, and Paul Wahlbeck. 1999. “Bargaining on the U.S. Supreme
Court: Justices’ Responses to Majority Opinion Drafts.” The Journal of Politics, Vol. 61, No. 2, pp.
485–506.

Steverman, Ben. “This Supreme Court Justice Wants you to Pay your Online Sales Tax”. Tulsa World
(Oklahoma), March 9, 2015.

Stone Sweet, Alec. 1999. “Judicialization and the Construction of Governance”. Comparative Political
Studies, Vol. 32, No. 2, pp. 147-184.

Stone Sweet, Alec, and Florian Grisel. 2014. “The Evolution of International Arbitration:
Delegation, Judicialization, Governance”, in International Arbitration and Global Governance:
Contending Theories and Evidence, eds. Walter Mattli and Thomas Dietz. Oxford University Press.

Tumulty, Brian. “Other States to Join South Dakota Appeal of Online Sales Tax Case.” The Bond
Buyer, September 18, 2017.

Varyani, Natasha. 2014. “Taxing Electronic Commerce: The Efforts of Sales and Use Tax to Evolve
with Technology.” Oklahoma City University Law Review, Vol. 39, No. 2, pp. 151–189.

125
Wahlbeck, Paul. 1997. “The Life of the Law: Judicial Politics and Legal Change.” The Journal of
Politics, Vol. 59, No. 3, pp. 778–802.

Wedeking, Justin. 2010. “Supreme Court Litigants and Strategic Framing.” American Journal of Political
Science, Vol. 54, No. 3, pp. 617-631.

White, James Boyd. 1995. “What's an Opinion for?” University of Chicago Law Review, Vol. 62, No. 4,
pp. 1363-1369.

Zimmerman, Joseph. 2007. Silence of Congress: State Taxation of Interstate Commerce, State University of
New York Press: NY.

3.9. Appendix: Tables and Figures

Table 3.1- Logistic Regression
Strategic Minority Opinions and Merits Briefs on the U.S.
Supreme Court

Independent Variables

Minority Opinions Cited in Briefs
Strategic Status .595*** (.098)
Constitutional Issue .01 (.01)
Intensity of Ideology .151 (.099)
Vagueness .317** (.149)
Author Ideology .402*** (.116)
Terms Left .016** (.007)
Plurality 1.237*** (.235)
Constant -.6*** (.126)
N 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Intensity of Ideology
and Author Ideology)

126

Table 3.2- Poisson Regression
Strategic Minority Opinions and Repeated Signals on the U.S.
Supreme Court

Independent Variables

Repetition of Minority Opinion
Reasoning
Strategic Status .452*** (.086)
Signal Brief 1.268*** (.09)
Constitutional Issue .41*** (.093)
Intensity of Ideology -.023 (.09)
Vagueness .257** (.112)
Author Ideology .472*** (.104)
Terms Left .041*** (.006)
Plurality .169 (.138)
Constant -2.054088*** (.145)
N 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Intensity of Ideology
and Author Ideology)

127
Table 3.3- Logistic Regression
Strategic Minority Opinions and Doctrinal Change on the U.S.
Supreme Court

Independent Variables

Adoption of Strategy
Strategic Status .633*** (.151)
Signal Brief 2.419*** (.222)
Constitutional Issue .053 (.148)
Intensity of Ideology .387** (.149)
Vagueness .202 (.2)
Author Ideology .482** (.177)
Terms Left .019** (.01)
Plurality .331* (.244)
Constant -4.332*** (.266)
N 4752
Robust standard errors in parentheses.
* p<.1, ** p<.05, *** p<.01 (all one-tailed tests except Intensity of Ideology
and Author Ideology)

128

129
Conclusion
In the first chapter, one of the examples used to showcase a type of strategic dissent was
derived from the case of Roe v. Flores-Ortega, 528 U.S. 470 (2000). There, Justice Souter introduced a
sua sponte argument advocating for the use of ABA standards to be applied in cases of effective
assistance of counsel, as they better fulfill the reasonable assistance standard of Strickland, and cited
specific sections of the Association’s code that should govern not only that particular case, but all
similarly situated litigants in relevant cases. Applying a before-after look in that particular instance
lends us a glimpse of the possible effects of strategically dissenting/concurring. Looking at the 5-
year period preceding Flores-Ortega (1995-1999), no cases regarding the effective right to counsel
were argued in the Supreme Court containing the ABA standards as the preferred standard of review
of counsels' conduct. In the 5-year period post Flores-Ortega (2001-2005), 10 cases addressing this
specific legal issue were reviewed by the Court. 4 were decided with the standards of the ABA in
mind, while 2 out of those 4 were majority opinions that used the ABA guidelines as the standard
followed by the Court in its reasoning, either supplemental to the Strickland basis or functioning as
the singular deciding standard. In the federal circuit courts, during the same pre- Flores-Ortega period,
only 25 out of 850 relevant cases discussed the ABA standards either in the majority or minority
opinions, which number amounted approximately to 2.5% of all relevant cases in the Circuit level.
That percentage increased to 5% of all effective assistance of counsel cases reviewed in the Circuit
courts in the post Flores-Ortega 5-year period.
Looking at litigant strategy in the Supreme Court before and after Flores-Ortega covering the
same relatively small timeframe, only the attorneys of Flores-Ortega used the reasoning in question
during 1995-1999. In the 5 years following that case, 5 more briefs were filed using the ABA

130
standards as reasoning in Supreme Court litigation, while in the Circuits, almost 10% of all briefs
66

filed also employed the standards discussed by Justice Souter.
If we treat litigation as the iterative game it is, then the practice of strategic minority opinions,
as theorized and explored in this thesis, also demonstrates that litigation should not be viewed as a
“winner-loser” type of game. Strategic minority opinions have the potential to recast the die, to place
a resourceful and influential “to be continued” sign on disputes and debates. In this light, which side
wins in court and the reasons for that side’s victory are not the only aspects of litigation that matter
in terms of law and policy-making. The information that is used now to affect laws and policies in
the future may be provided by litigants themselves in the course of any trial, as was the case with
Flores-Ortega. Yet the sharing or repetition of this information by an elite source in the form of a
written minority opinion envelops the logic and argumentation provided by the litigant with
additional status and persuasive qualities. It becomes an informational signal that can be reiterated
among litigant circles and recited back to its author and other colleagues as a proposition that
already enjoys some support and possesses authoritative properties. This is equally evident from the
emergence of the signaled logic of Flores-Ortega both in litigant briefs and the written opinions by
judges following that case, compared to the near total absence of that argumentation preceding
Justice Souter’s dissenting opinion.
When thinking of legal and policy change, we routinely assess such changes by their apparent
characteristics; which statute/rule changed? Which one was upheld? Who immediately benefits from
the result? Particularly aided by the passage of time, we reinvent the choices made by policy-makers
(judicial and more standard ones) as the only options that were ever really viable, sensible, etc. But
the nature of litigation in the U.S. political and sociolegal landscape is significantly more nuanced
than that and, more importantly, it allows for a variety of proffered solutions, as well as for

66
467 out of 5128 briefs filed in the totality of U.S. Courts of Appeals relevant cases.

131
reexamination of those adopted. The logic of strategic minority opinions points to the well-known
adage that the “losers of today may very well be the winners of tomorrow”, but at the heart of this
strategy lies the admission that if indeed there are “winners” and “losers”, this configuration could at
best be described as temporary and that this impermanence is very much the real unwavering feature
of litigation. In this vein, minority opinions do more than console the “losers”; they can offer
foundation for the continuation of dispute resolution in the courtroom and incite action in the more
traditional political arenas by providing original and concrete ways to do so. Because they possess
the necessary characteristics to push forward the above-mentioned desired ends, strategic minority
opinions effectively blur the lines between “winners” and “losers” in litigation; their strategy is for
the long run.
If one engages with the literature in judicial behavior and politics, and broadly the literature
dedicated to the study of U.S. law and courts, one will find that there is a good amount of discussion
and analysis of Supreme Court minority opinions, but these analyses are to a great extent normative,
descriptive, and/or theoretical. Students of judicial politics know that judges and justices of the
federal judiciary write minority opinions because they are not quite satisfied with the outcome before
them and try to influence future doctrine via such attempts, mainly because they themselves have
said so in various accounts (indicatively Brennan 1986, Cardozo 1921, Douglas 1948, Ginsburg
1990, Hughes 1928, Jackson 1955, Scalia 1994, among many others). So, as students of judicial
politics, of courts and their role and impact in the political landscape, we have a good understanding
of the various functions that minority opinions may have; either expanding the logic of the majority
opinion, restricting it, contradicting it, etc. and the motivation behind the composition of these
opinions. But empirically, we are not confident about how exactly minority opinions could achieve
all this, or under which circumstances, and if at the end of the day, such a practice is effective.

132
The main contribution of this dissertation to the aforementioned literature is that I theorize
and empirically test a novel concept that captures this judicial aspiration of affecting future doctrine
and policy; the concept of strategic minority opinions. By extension, I offer an explanation as to why
some minority opinions are more important or consequential than others- if what we really care
about, and lies in the heart of this epistemic debate, is indeed doctrinal and policy change.
The original elements of the concept of strategic minority opinions are their initiating of a
dialogue, the fact that justices are addressing someone when authoring them, and secondly, that
these dissents and concurrences contain tactics, solid suggestions for how to compel change, which
were completely unaddressed by the majority coalition in any given case and therefore, their logic
and argumentation has not been rejected, and perhaps not even deliberated, as of the moment they
appear. One advantage of this concept is that it measures something occurring at the moment of its
creation and not on the basis of any later effects, such as issue salience, which some other studies on
minority opinions focus on. So, it avoids endogeneity issues that conflate explanatory variables with
the outcome that the study attempts to explain.
This thesis situates the concept of strategic minority opinions in the rational choice model of
judicial behavior, but because the theory itself shifts our attention to the institutional context, I also
look at the broader environment in which this practice takes place and the factors that judges may
take into account when they strategically dissent or concur. This is where the theory of
judicialization and the theory of triadic dispute resolution are brought in Chapters 2 and 3
respectively to guide our understanding of strategic minority opinions. In this light, this project is
the first, to the author’s best knowledge, that combines these three different theoretical frameworks
to showcase the interconnectivity of practices commonly thought as purely judicial with the broader
American political and sociolegal landscape.

133
In Chapter 1, which looks at behavioral and intra-institutional reasons that may give rise to the
practice of strategic minority opinions, I find that ideologically conservative justices, justices with
intense ideological tendencies, and activist justices are more inclined to strategically dissent or
concur. It is also revealed that court caseload matters, that justices take advantage of vague doctrine
to engage in authoring such opinions, and that the strategy of others in the form of minority
opinion-writing propels others to also strategize. It is also illuminated, as echoed by other studies,
that relationships with colleagues on the bench do not go undervalued, because justices strategically
dissent and concur more when they are ideologically further away from the majority opinion author,
thus risking a bit less in terms of causing animosity or ruining chances for bargaining. Additionally,
authoring strategic minority opinions further reveals its connection to the institution in which it is
practiced via the influence of justices’ tenure on their tendency to write and publish this type of
minority opinions.
Chapter 2 turns our attention to potential interinstitutional effects on the tendency to write
strategic minority opinions and finds that authoring justices tend to strategize more based on the
ideological position of key players in the other branches vis-à-vis theirs, and that a judicialized
political environment bolsters these opinions. So, the practice of strategizing via minority opinions is
indeed contingent upon interbranch relations and the legislative environment. Consistent with the
theory of judicialization, i.e. the theory that explains how specific conditions in the elected branches
and sociolegal design promulgate the resolution of political disputes in courts rather than through
regular politics, strategic minority opinions are bolstered by highly judicialized environments but
also, in turn, promote judicial solutions by addressing societal and political parties who can advance
their interests through litigation. Explicitly, I show that justices tend to author strategic minority
opinions when the Senate and executive branch (but not the House) move ideologically further away
in an effort to influence them towards more preferable action, when the law reviewed is declared

134
vague, when one of the litigant parties is governmental, and when the executive is one that favors
private enforcement regimes over generalized legislative solutions. On the other hand, justices
dissent and concur strategically with less frequency when both congressional chambers are carried
by the same party, when Supreme and Circuit Court caseloads increase, and when laws are lengthier
and therefore more detailed. Finally, the caseload of U.S. District Courts increases when the justices’
practice of authoring strategic minority opinions has been intensifying in the terms preceding those
studied and the effect remains significant when controlling for other explanatory factors.
In the final chapter, Chapter 3, combining rational choice theory with the theory of Triadic
Dispute Resolution, reveals that strategic minority opinions are more visible to litigants, they are
repeated more often in the Supreme Court by the justices themselves and in litigant briefs in
subsequent litigation, and most importantly, they are adopted at double the rate than non-strategic
minority opinions. This effectively means, that a litigant using argumentation that was previously
signaled in a minority opinion can double their chances of achieving legal and policy change.
Chapter 3, therefore, is the first attempt at empirically measuring the effect of minority opinion
writing in an encompassing manner that cuts across the totality of legal issues and areas and covers
more than three decades of Supreme Court litigation, by isolating and testing for the element of
strategy.
This thesis does not claim to put forth a complete account of what may affect the practice or
the impact of strategic minority opinions, but to the best of the author’s knowledge, it is the first to
capture these relationships and effects. If one thing can be said about the phenomenon of strategic
minority opinions, it is that, based on this preliminary research, multiple other avenues of future
inquiry are revealed. This thesis reveals the phenomenon itself and alerts us to its importance, while
allowing us to understand how exactly minority opinion writing on the US Supreme Court can be
crucial for litigation and judicial policy-making. Nevertheless, the breadth of this topic summons us

135
to inquire further. Both earlier and later accounts on the reasons behind judicial policy-making and
the factors that enable it point to public attitudes on issues and legislative inertia patterns and the
extent to which this latter issue leads to more or less administrative policy-making, which in turn can
further pronounce judicial responses. Calabresi (1982), for instance, echoes the popular view that the
Supreme Court’s behavior, be it activist or restraintist, is reflective of the impact of judicialized
political environments on political institutions- effectively talking about judicialization before the
term had been coined. More recent accounts on the interest group society and how it has
repurposed itself towards achieving favorable policy success in courtrooms, compared to more
traditional political realms, also point to the role that legislative inertia plays, as well as the public’s
perception of the judiciary’s abilities in affecting legal and policy change (Teles 2008). Such early and
later accounts point to elected officials’ acknowledgment that the decisions courts make can save
them a lot of grief; judicial decisions allow elected officials to avoid or postpone enacting tough
legislation or revising obsolete statutes. With this trade-off, there is the assumption that the populace
accepts this state of affairs or that, at the very least, the public is not antithetical to the role courts
play. The above considerations point to the need of adding both a lower federal court analysis to
measure the effects of strategic minority opinions vs. non-strategic ones, as well as looking to the
role administrative agencies play vis-à-vis congressional delegation and legislative inertia, and how
the courts respond to such stimuli. They also speak to the need for more qualitative and quantitative
analysis on the involvement of interest groups, especially as they make themselves visible via amicus
briefs and congressional hearings and how these actors may respond to strategic minority opinions
or inspire judges to author them.
Courts may possess neither the power of the purse nor the power of the sword and their
involvement in affecting legal and policy change may leave a lot to be desired in a democratic
political system. But, the reality of the matter and what this thesis shows is that they do possess a

136
different type of power; that of creating and affecting policy discourse, which elicits tangible results,
nonetheless. Judicial policy-making may be decried in the open, but more often than not, it is
promulgated and even desired by non-judicial branch factors, and judges enjoy a variety of methods
and tools that promote this type of policy-making. Strategic minority opinions are born out of
institutional configurations as much as they are promoted by certain behavioral characteristics, and
they should be taken into consideration when discussing the courts’ (not so) restricted means of
recasting winners and losers in the long-term game of litigation.

Bibliography
Brennan, William J., Jr. 1986. “In Defense of Dissents. (Address Given at the Third Annual Mathew
O. Tobriner Lecture at the University of California, Hastings College of the Law, Nov. 18,
1985) (transcript)”. Hastings Law Journal, Vol. 37, No. 3, pp. 427-438.

Calabresi, Guido. 1982. A Common Law for the Age of Statutes. Cambridge, MA: Harvard University
Press.

Cardozo, Benjamin. 1921. The Nature of the Judicial Process. New Haven: Yale University Press.

Douglas, William. 1948. The Dissent: A Safeguard of Democracy”. Journal of the American Judicature
Society, Vol. 32, pp. 104-107.

Ginsburg, Ruth Bader. 1990. “Remarks on Writing Separately.” Washington Law Review, Vol. 65, No.
1, pp. 133-150.

Hughes, Charles Evans. 1928 (1936). The Supreme Court of the United States; Its Foundation, Methods and
Achievements, an Interpretation. New York: Columbia University Press.

Jackson, Robert. 1955. The Supreme Court in the American System of Government. Cambridge: Harvard
University Press.

Scalia, Antonin. 1994. “Dissenting Opinions”. Journal of Supreme Court History, Vol. 1994, pp. 33-44.

Teles, Steven. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law.
Princeton, N.J: Princeton University Press.

Abstract (if available)

Abstract What motivates Supreme Court justices to issue minority opinions? Are all minority opinions similar in type, function, or quality? Are they essentially a product of the least dangerous branch in the U.S. political landscape or do they reflect and interact with the institutional context? In the course of time, what is the contribution of this judicial practice to legal discourse specifically, and political dialogue broadly? This thesis answers the above questions by introducing the concept of strategic minority opinions

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Creator Giallouri, Thora (Theodora) (author)

Core Title Neither purse nor sword: strategic minority opinions and judicial policy-making

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science and International Relations

Publication Date 07/25/2019

Defense Date 04/22/2019

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag argumentation frameworks,attorneys,concurrences,court audiences,court caseload,dissents,error correction,executive branch,House Judiciary Committee,House median member,judicial activism,judicial behavior,judicial decision-making,judicial dialogue,judicial policy-making,judicialization,judicialized political environments,justice ideology,law clerks,legal change,legislative inertia,litigation strategy,majority coalition,minority opinions,OAI-PMH Harvest,path dependence,policy change,private enforcement regimes,qualitative interviews,quality of statutes,rational choice model,repeat-players,Senate Judiciary Committee,Senate median member,signaling,strategic minority opinions,strategic opinion writing,triadic dispute resolution,U.S. adversarialism,U.S. Supreme Court,vague doctrine

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Advisor Sandholtz, Wayne Arthur (committee chair), Sellers, Jefferey (committee member), Wood, Abby (committee member)

Creator Email atgiallouri@gmail.com,giallour@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c89-191718

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