Ward Farnsworth (Boston University School of Law) has posted Dissents Against Type (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Legal realists and various others believe that judges in close case - and thus Supreme Court justices in most cases - vote according to their policy preferences, private empirical views about the world, and other considerations that have little to do with the legal materials bearing on a dispute. For those who think this way, a judge who dissents in an unexpected ideological direction is a surprise and a challenge; in a case where that happens, the arguments in favor of the judge's usual position not only were available but were strong enough to convince at least five colleagues, yet he rejected them. This paper examines such dissents against type in criminal cases at the Supreme Court, distinguishes between real and apparent examples of them, and considers whether and how they can be integrated into a realist view of judging.
The paper's principal conclusions are, first, that true dissents against type rarely occur. Apparent cases of them often involve underlying facts that make the vote ideologically unsurprising after all. Thus William Rehnquist almost always voted for the government in criminal cases - and when he dissented in favor of defendants, they invariably had been accused of white collar crimes or firearms offenses. In other cases, dissents against type usefully clarify what a justice's type is. Being conservative, for example, does not necessarily mean preferring the government's position across the board in criminal cases; sometimes it means a commitment to more particular values, such as a preference for finality over accuracy, that are often associated with the government's position but not always. True dissents against type, where a justice is bound by methodological principle to vote against his usual politics, are scarce but not unheard of.