R-E-S-P-E-C-T: An Analysis of the Norm of Respectful Dissent

Why do Supreme Court justices break away from the norm of respectful dissent? I answer this question by defining what constitutes a respectful dissent in the context of the Supreme Court, illustrating why the practice is a norm, and describing how the norm became established. I then explain why justices might decline to pen a respectful dissent. I theorize that justices deviate from this norm to signal their intense displeasure with a ruling in a way that is more salient for non-legal audiences. I expect that dissent-majority ideological distance, the overturning of precedent, and specific areas of law increase the likelihood of non-respectful dissents. I test these hypotheses using a dataset composed of every dissenting opinion from 1957, the term with the first recorded example of the norm, to 2022, finding support for my theory. Interestingly, including time within the model further highlights the norm’s entrenchment in the Court and the unwillingness to break it. These findings emphasize the strategic nature of breaking the norm while also showcasing that collegiality is still present in dissenting opinions.