Collegiality and the Language of Dissent

Abstract

Abstract This chapter explores how interpersonal contact impacts the language of dissent in the U.S. Courts of Appeals and the U.S. Supreme Court. A dissenter can express disagreement in benign legal terms, in starkly critical language, or anywhere in between. Judges face a trade-off regarding the language they use; caustic language may both negatively affect collegiality and increase the likelihood that the dissenting judge’s policy position is publicized or influential in future cases. In this way, there is a policy-collegiality trade-off. This chapter theorizes that more extensive personal relationships should be associated with dissenting opinions that are less negative, rude, and confrontational in tone and more positive or polite. Evidence indicates that collegiality can affect the expression of disagreement for all federal appellate judges. For example, circuit judges are less rude when they expect to serve with the majority opinion author frequently in the future.