If you’re going to disagree with people, you might as well make a stink. Anything less, and you’re destined to be forgettable.
That’s one lesson from a recent study entitled “How to lose cases and influence people,” published in the journal Statistics, Politics, and Policy, which examines the effectiveness of dissenting opinions in the US Supreme Court. It concludes that legal losers can be influential—especially sore losers.
Political scientists Rachael K Hinkle of the State University of New York, Buffalo and Michael Nelson of Pennsylvania State University set out to understand why justices bother to disagree with their colleagues by writing minority opinions, despite the effort involved and the social cost of openly sparring with their coworkers. In analyzing the language of dissenting opinions, they found that emotional and vivid losing arguments get cited in later cases, while polite, mild disagreements don’t.
Dissenting opinions don’t set legal precedents. But memorable dissents can change minds and pave the way for a shift in perspective, so that a minority view gains acceptance over time and even prevail. Or, as Ruth Bader Ginsburg has said, “I like to think most of my dissents will be the law someday.”
That said, very few dissents are remembered, according to the study. An algorithmic analysis of citations over time revealed that minority opinions are rarely discussed in later cases. Only 17% of the dissents written between 1937 and 2014 have ever been cited by a subsequent majority opinion.
Minority opinions must be argued particularly vividly to be influential. Justices already know this—that’s why they employ razor wit. For example, the late justice Antonin Scalia was controversial for his conservative views, but widely admired for his writing across political divides. He deliberately annoyed in his opinions, and showed his annoyance, explaining, “My tone is sometimes sharp. But I think sharpness is sometimes needed. […] Especially in my dissents.”
Notably, the most memorable dissents use language that’s not very lawyerly, according to the study. For example, in King v. Burwell, Scalia accused the majority of engaging in “interpretive jiggery-pokery.” Likewise, Ginsburg’s dissent in Shelby County v. Holder criticized colleagues for logic akin to “throwing away your umbrella in a rainstorm because you are not getting wet.”
In both cases, the justice’s distinctive language was widely covered by press, shared on social media, and excerpted in legal casebooks, all indicators of influence. And both critiques were popular because they weren’t lawyerly at all. In fact, the less a dissent uses common legal language, the more it’s cited by judges and others.
There’s also what the researchers call a “Sore Loser Benefit.” They explain that framing dissenting opinions in negative emotional language “is a particularly strong strategy” for those who hope to be remembered. In other words, being mild and polite minimizes not just conflict, but also influence.
It’s an interesting point to consider even if you’re not a judge. If you disagree with others, but aren’t willing to rile people up, there’s no chance you’ll make change. But troublemakers pave the way for others to speak up and shift perspectives, so society does need them.
The researchers’ advice for the justices applies to the rest of us, too, if we’re brave enough to try it. “Be more caustic, witty, and personally involved on things you care about,” they write. “Bland dissenting opinions may fail to rile one’s colleagues, thereby preserving a sense of collegiality […] but they are also impotent dissents.”