by
Bill
O’Leary/The
Washington
Post
via
Getty
Images)
Court
cases
are
usually
remembered
for
their
holdings.
That’s
a
no
brainer;
majority
opinions
are
what
determine
things
like
damages,
why
X
person
faces
Y
consequence(s),
and
which
legal
arguments
are
worth
going
for.
But
important
work
can
happen
in
dissents
too.
When
judges
aren’t
using
them
to
audition
for
the
next
vacant
Supreme
Court
seat,
dissenting
opinions
can
show
posterity
that
the
judiciary
is
not
a
unified
mind.
Justice
Taney’s
dissent
in
Dred
Scott
v.
Sanford
lives
in
infamy
as
an
example
of
how
racial
schematization
can
impact
legal
decision
making
and
access
to
Constitutional
protections,
as
did
Harlan’s
dissent
in
Plessy
v.
Ferguson.
Dissents
make
it
easier
to
note
when
legal
outcomes
are
explained
by
party
lines
or
even,
which
is
far
more
interesting
in
a
case
like
Learning
Resources,
Inc.
v.
Trump,
confuddled
by
them
—
one
of
the
unexpected
highlights
to
come
out
of
that
case
was
Gorsuch’s
analysis
of
the
jurisprudential
flip-flopping
on
both
sides
of
the
decision.
Pauline
Newman
has
been
a
force
of
nature
in
the
recent
dissent
landscape.
She’s
been
on
the
dissenting
side
of
her
panels
hundreds
of
times
and,
almost
as
imported,
vindicated
by
time.
As
she
fought
her
panel’s
accusations
that
she
was
no
longer
mentally
fit
to
do
her
job
(she
dissented
from
that
judgment
too),
the
Supreme
Court
affirmed
one
of
her
dissenting
opinions.
If
her
thinking
is
so
apparently
faulty,
where
does
that
leave
them?
I
digress.
Since
the
United
States
Court
of
Appeals
for
the
Federal
Circuit
decided
to
circumvent
the
constitutionally
required
process
of
impeaching
Judge
Newman
—
opting
instead
to
blame
disproven
heart
attacks,
alleged
mental
incompetency,
and
angels
dancing
on
the
heads
of
pins
as
justifications
for
why
she
couldn’t
do
her
job
—
the
number
of
dissents
on
the
Federal
Circuit
has
dropped
off.
Patently-O
has
coverage:
[N]ewman’s
voice
of
disagreement
defined
the
Federal
Circuit’s
internal
dialogue
on
patent
law.
An
empirical
analysis
of
almost
5,000
precedential
Federal
Circuit
opinions
issued
between
2004
and
early
2026
reveals
just
how
dramatically
this
one
judge
shaped
the
court’s
culture.
We
now
have
two
full
calendar
years
of
post-Newman
data,
and
the
results
are
striking:
in
2024
and
2025,
the
court’s
dissent
rate
fell
dramatically.
The
Federal
Circuit
has
become,
in
the
space
of
two
years,
one
of
the
most
consensus-oriented
appellate
courts
in
the
federal
system.…
[T]he
magnitude
of
the
effect
is
actually
much
greater
than
what
can
be
accounted
for
from
Newman’s
direct
impact
on
panel
opinions…the
court’s
dissent
rate
has
fallen
not
just
by
the
amount
attributable
to
Newman’s
own
dissents,
but
to
roughly
half
the
historical
baseline
of
even
non-Newman
panels—suggesting
her
departure
transformed
the
court’s
broader
culture
of
disagreement.
What’s
the
explanation?
Have
the
cases
before
panels
just
been
abnormally
easy
to
decide
over
the
last
two
years?
Or
has
the
high
profile
strong-arming
out
of
a
nay-saying
judge
encouraged
would-be
dissenters
to
hold
their
tongues?
I
really
do
think
that
one
of
the
biggest
blunders
that
news
sites
have
done
in
their
coverage
of
Newman’s
ordeal
is
focus
on
her
age.
It
makes
it
much
easier
to
ignore
that
the
underlying
justifications
for
her
removal
have
little
to
do
with
that.
If
the
Circuit
successfully
moves
the
goalpost
of
impeachment
from
Congress
voting
to
“We
deem
this
judge
to
be
disabled,”
the
job
security
of
all
federal
judges
shifts
from
the
slightly
vague
“good
behavior”
to
the
much
more
fraught
standard
of
“not
too
disabled.”
The
Circuit
already
got
caught
lying
about
Newman’s
medical
history.
What
prevents
a
panel
of
judges
from
punishing
a
disagreeable
colleague
by
accusing
them
of
suffering
a
COVID
infection
that
irrevocably
damaged
their
thinking
processes?
That’s
a
little
far
fetched
because
it
would
require
people
to
acknowledge
that
COVID
is
still
a
real
and
incapacitating
threat,
but
use
your
imagination.
The
good
behavior
standard
isn’t
perfect,
but
it
has
to
be
better
than
popularity
and
agreeability
determining
the
career
length
of
circuit
judges.
The
judiciary
brags
about
policing
itself,
but
there
have
to
be
limits.
Has
the
Newman
case
made
it
less
likely
for
you
to
dissent
from
your
colleagues?
Let
us
know
at
[email protected].
Federal
Circuit
Dissent
Rates
Collapse
After
Newman’s
Removal
[Patentlyo]
Huge
Development
In
Pauline
Newman’s
Case:
The
Test
Results
Are
In!
A
Lifetime-Appointed
Judge
Was
Accused
Of
Not
Being
Able
To
Do
Her
Job.
She
Brought
Receipts.
Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s
.
He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boat
builder
who
is
learning
to
swim
and
is
interested
in
rhetoric,
Spinozists
and
humor.
Getting
back
in
to
cycling
wouldn’t
hurt
either.
You
can
reach
him
by
email
at [email protected]
and
by
tweet
at @WritesForRent.