Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts .