July 30, 2020 - Federal Circuit Insights

Agreeing to Disagree: How Often Do Judges Dissent?

The Federal Circuit is known for being a collegial court. So we decided to take a look at how often the judges disagree with one another. To do so, we looked under the hood at the data for our statistics. Since we started tracking Federal Circuit cases, there have been 29 out of 534 cases with dissents, 30 dissents, and 28 dissenting opinions. How are there more dissents than cases with dissents, given that we are tracking three-judge panel decisions? In one case, both Judges Newman and Taranto separately dissented on different issues, so each were partly in the majority. And how are there fewer dissenting opinions than dissents? Judges Lourie and Hughes each dissented without a dissent opinion. There was also one case with a per curiam majority opinion in which Judge Newman partially dissented.

After parsing the data, we created the following chart, which shows how many times each judge has dissented and how many times each judge has authored a majority opinion with a dissent. You can also see who has disagreed with whom. For example, Judges Lourie and Reyna have reached opposite conclusions in four cases. Note that the chart omits the case with a per curiam majority opinion and omits senior judges who have neither authored a dissent nor authored a majority opinion that garnered a dissent.

Dissent Chart

For decisions from November 1, 2019 to July 28, 2020.

Here are a few more observations:

  • Over half (60%) of the dissents came from two judges: Judges Newman and Reyna each have nine.
  • While Judge Newman is tied for the most dissents, none of her majority opinions garnered a dissent. Judge Moore was the only other active judge to achieve that unanimity in authored opinions.
  • While most of the dissents were concentrated between two judges, the same was not true with respect to majority opinions with dissents. Half the active judges on the Court have between three to five majority opinions with dissents, and no judge had more than five majority opinions with dissent (Judge O’Malley having five).
  • Of the active judges, only three wrote no dissents: Chief Judge Prost and two of the Court’s newest members—Judges Chen and Stoll.
  • Of the senior judges, Judges Clevenger and Plager each dissented once and only Judge Bryson authored a majority opinion with a dissent.
  • Most of the dissents come from district court and PTAB cases (which were about evenly divided in number of dissents). There were dissents in five CFC cases and just one in a MSPB case. But there were no dissents from cases arising from any other part of the Court’s docket. Thus, even though non-patent cases made up roughly 40% of the decided cases, they made up only about 20% of cases in which there was a dissent.

Editors’ note: This week we say goodbye to our appellate paralegal Holly Chaisson who will be attending law school in the fall. Holly was instrumental in the launch of this blog and the compilation and analysis of its data. Best of luck, Holly!

Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.