Author ORCID Identifier

Tonja Jacobi 0000-0002-5200-5765

Document Type


Publication Date



Dissenting opinions, Supreme Court, Federal-state disputes, Future litigants, Judicial signaling, Policy preferences, Justices, Federalism, Ideological positions


This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism for splitting existing majorities in future cases. By signaling to future litigants when this potential exists, dissenting judges can transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions in which the dissenting Justice suggests that future cases ought to be framed in terms of federal-state powers. We show that when dissenting opinions signal a preference for transforming an issue into an argument about federal-state power, more subsequent cases in that area are decided on that basis. Moreover, the previous minority coalition is in the majority significantly more often, showing that these signals are systematically successful. Not only can federalism-based dissents transform the rhetoric of cases, they can systematically and significantly shift the outcome of cases in the direction of the dissenting Justices’ views.

First Page


Publication Title

Duke Law Journal


Copyright © 2009 by Vanessa Baird and Tonja Jacobi.