Judicial Rebels: How Dissenting Judges Wage Law's Quiet Battles—And When the Supreme Court Listens
Dissents in courts of appeals are understudied but have dramatic impact on the legal landscape. This is an analysis of these dissents since the start of 2024.
In the world of federal appeals courts, a dissenting opinion is more than just disagreement—it is a judicial flare shot into the legal sky, a calculated attempt to reshape the law, influence higher courts, and even alter the course of constitutional interpretation. Some dissents vanish into obscurity, their impact minimal. Others, like Judge Patrick Bumatay’s dissent in Duncan v. Bonta, stand as forceful rebuttals to the majority and strategic invitations for Supreme Court intervention.
Judge Bumatay’s dissent is a strong example of the art of judicial resistance. In Duncan v. Bonta, the Ninth Circuit upheld California’s ban on so-called “large-capacity” firearm magazines—an outcome Bumatay saw as a blatant affront to the Second Amendment. He did not hold back. With rhetorical force, he declared, “California’s actions continually whittle away the Second Amendment guarantee.” For Bumatay, the majority’s ruling was not just incorrect but a direct defiance of Supreme Court precedent: “Yet again, the majority continues to reject the Supreme Court’s Second Amendment jurisprudence.” His dissent was a direct challenge—not just to his colleagues but to the Supreme Court itself, an urgent call for the justices to step in and correct what he saw as judicial error.
Bumatay’s dissent went further, attempting to strike at the foundation of the majority’s reasoning. “Simply, no historical analogue justifies California’s absolute ban on magazines that come standard with most firearms,” he wrote. He framed the decision as a fundamental misreading of the Second Amendment, arguing, “The right to keep and bear firearms that use a magazine able to hold more than ten rounds is presumptively protected by the text of the Second Amendment.” He saw the ruling as not just an error but a dangerous precedent—one that ignored both constitutional text and historical tradition.
But why dissent at all? If the majority has spoken, and the ruling stands, why issue a counterargument doomed to legal irrelevance? The answer lies in judicial strategy. As Epstein, Landes, and Posner in The Behavior of Federal Judges explain, dissenting is often a matter of ideological conviction, but it is also a tactical move. “To explain dissents, we must first explain why judges are unable to resolve disagreements when they confer to decide the case,” the book notes. Personality plays a role, but so does the composition of the panel. The greater the ideological divide, the less likely judges are to find common ground. As the book highlights, “The more heterogeneous a panel... the less likely the judges are to think alike, to understand and trust each other, to have similar priors, and in short to be predisposed to agree.”
The ideological nature of dissenting judges is no accident. The book makes clear that “the party of the appointing President is a good proxy for the ex ante ideology of a court of appeals judge.” Republican-appointed judges lean conservative, Democratic-appointed judges lean liberal, and while some defy these expectations, the general pattern holds. This is why dissents are not just individual statements of disagreement but often reflections of the broader ideological battle playing out in the federal judiciary.
Strategic dissents also serve a practical purpose: increasing the odds of Supreme Court review. The statistics are compelling. As the book reveals, “There was a dissenting opinion in almost 33 percent of the court of appeals decisions in which certiorari was granted but in fewer than 10 percent of decisions in which certiorari was denied.” This means a dissent significantly raises the likelihood that the Supreme Court will take up a case—though, as the book also notes, the overall odds remain long. Judges know this, but for those who believe their colleagues have misinterpreted the Constitution, dissenting is a bet worth making.
Bumatay’s dissent in Duncan v. Bonta fits this mold perfectly. He knew the Supreme Court had recently reaffirmed strong protections for the Second Amendment in Bruen and McDonald, and he framed his dissent as an urgent plea for the justices to intervene. He positioned himself not merely as a disagreeing judge but as a defender of constitutional fidelity against a rogue majority. “We sound the alarm yet again—but this time, it’s more dire given the extreme nature of the majority’s ruling,” he warned, as if issuing a final call before constitutional collapse.
He also accused the majority of reviving judicial policymaking under the guise of precedent. “The majority simply cloaks interest balancing under the guise of ‘tradition,’” he wrote, condemning what he saw as an attempt to dilute the Second Amendment’s protections. “So in the Ninth Circuit, we’ve returned to the old days of judicial policymaking that the Court has gone out of its way to end.” For Bumatay, the ruling represented a dangerous expansion of judicial power—one that required a forceful and public response.
The federal appeals courts are not just passive interpreters of law. They are battlegrounds of legal philosophy where dissents are weapons, strategically deployed to challenge circuit precedent, sway higher courts, and reshape American law. As Bumatay’s dissent in Duncan v. Bonta demonstrates, dissenting judges are not merely voicing disagreement—they are playing the long game, shaping legal debates that may ultimately be decided at the highest court in the land.
This article deconstructs factors behind and reasons for dissents in the federal courts of appeals. The next section describes how.
Methods
The text below examines the conditions that influence dissenting opinions in the courts of appeals, considering dissents from both panel and en banc decisions, as well as dissents from denials of en banc rehearing. The data are based on written dissents from the beginning of 2024 through the present. Several key factors play a role.