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 tips@abovethelaw.com.
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 cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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