Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

Abstract

The literature on judicial behavior indicates that dissent is costly to the individual judge, for it means an increased workload and the incurrence of reputational costs. This observation leads to the concept of dissent aversion, which is the notion that judges may refrain from dissenting, even though they disagree with the court's position, in order to avoid those costs. In this article, I explore the fact that voting at the Brazilian Supreme Court is sequential, and that this sequence varies in almost every single case, to generate a quasi‐experiment that allows for a clearer identification of dissent aversion than is found in other contexts. The main idea is that after a majority has been formed, the justices who vote in sequence know that their votes cannot change the outcome of the case. Hence, they may deviate from their preferred votes and join the majority to avoid the costs of dissenting. Using a unique dataset with vote‐level data of all abstract review cases heard by the full Court from 1990 until 2015, this study finds strong evidence of dissent aversion in the Brazilian Supreme Court. Judges who vote after the pivotal judge are significantly less likely to dissent.