In recent years, academics and jurists alike have debated the propriety of publishing dissents from orders denying rehearing en banc (DDRs). Proponents contend that DDRs constitute a highly useful contribution to legal discourse, while critics argue that DDR authors inappropriately act as advocates rather than jurists, interposing themselves in cases they have not been called on to decide. To date, arguments on both sides have largely lacked a solid empirical grounding to demonstrate the collective effect of DDRs on the judicial system.
In this Article, I use a dataset of every DDR from the federal courts of appeals to give a fuller context to the debate over their appropriateness, a better understanding of the costs and benefits they entail, and an enhanced picture of the extent to which ideology affects their use. I find that the party affiliation of a DDR’s author matters considerably in how the Supreme Court treats the case—Republican DDR authors are more than twice as likely to obtain Supreme Court review of a case as their Democratic counterparts, and this chasm is growing. Because cases with DDRs now make up an increasingly large portion of the Supreme Court’s oral argument docket, these differences can have an enormous practical impact. I argue that these results could contribute to the perception of a politically polarized judiciary, and that the negative consequences of such a perception are potentially profound. I then offer potential guidelines for judges to consider before publishing a DDR aimed at balancing their desire for self-expression and need to maintain judicial legitimacy.
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