Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

Abstract

The literature on judicial behavior indicates that dissent is costly to the individual judge, for it means an increased workload and the incurrence of reputational costs. This observation leads to the concept of dissent aversion, which is the notion that judges may refrain from dissenting, even though they disagree with the court's position, in order to avoid those costs. In this article, I explore the fact that voting at the Brazilian Supreme Court is sequential, and that this sequence varies in almost every single case, to generate a quasi‐experiment that allows for a clearer identification of dissent aversion than is found in other contexts. The main idea is that after a majority has been formed, the justices who vote in sequence know that their votes cannot change the outcome of the case. Hence, they may deviate from their preferred votes and join the majority to avoid the costs of dissenting. Using a unique dataset with vote‐level data of all abstract review cases heard by the full Court from 1990 until 2015, this study finds strong evidence of dissent aversion in the Brazilian Supreme Court. Judges who vote after the pivotal judge are significantly less likely to dissent.

“They don't let us speak”: Gender, collegiality, and interruptions in deliberations in the Brazilian Supreme Court

“…Although judges can state their opinion in terms as succinct as “I follow the reporter,” in many cases each STF judge typically brings to session her own fully developed written opinion, which she will then read aloud when it is her turn to vote. However, as each judge that votes reveals information about the likely outcome, the behavior of judges whose turn comes later might be affected by strategic considerations, such as avoiding unnecessary defeats to display collegiality (Lopes, 2019). Judges can change their votes at any point before voting ends and the CJ announces the result.…”

“…While political and social dynamics can shape individual choices on if, when, and how to interrupt or criticize a colleague during deliberations, there are no formal legal, procedural rules constraining such behaviors. In the judicial “collegial game,” it is possible that a judge would suffer informal consequences for dissenting (Lopes, 2019; Maltzman et al, 2000). In the STF, specifically, the same possibility could apply to a judge who abruptly interrupts his or her colleagues.…”

“…The underlying assumption is that dissents in the STF are, even if just to a minimum extent, costly to the dissenting judge (Epstein et al, 2011; Lopes, 2019). Every judge has the option to simply follow the reporter's opinion and briefly state his reasons orally; in several cases, this amounts only to saying “I follow the reporter” ( Sigo o relator ).…”

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“…Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things Lopes (2019) traz dados empíricos para fortalecer uma constatação que já havia sido sugerida, intuitivamente, na literatura (MOREIRA, 2005, p. 237): os ministros podem desistir de divergir se perceberem que a inauguração de uma divergência aumentaria seu trabalho ou sua indisposição com os pares, e não teria grande utilidade prática na definição do resultado".…”

Judicial ideology in economic cases: Evidence from the General Court of the European Union

“…Aside from the impact of the median judge, strategic accounts of judicial bargaining on collegial courts point out the influence that the rapporteur judge – that is, the judge entrusted with the task of preparing and writing the decision of the court – may potentially wield as a result of the effort or collegiality costs faced by the median judge (Cameron and Kornhauser, 2013; de Mendonça Lopes, 2019; Hangartner et al., 2015). Zhang et al.…”