How the Dissent Becomes the Majority: Using Federalism to Transform Coalitions in the U.S. Supreme Court

Many judicial outcomes based on the substantial legal merits of the case could potentially be reversed if the case was decided on procedural grounds. Minority coalitions then have an incentive to signal to potential litigants that they would like to see the substance of the legal debate transformed onto a procedural dimension. This article presents a theory of judicial signaling, akin to Riker's (1986) theory of heresthetical manuevering, to Supreme Court justices' use of signals in dissenting opinions as agenda setting tools. The empirical tests of the theory show that when justices write dissenting opinions that signal a preference for transforming the substantive issue to one about federalism, there is an increase in future Supreme Court decisions resting on the basis of federal versus state power. Moreover, the coalition that had previously been in the minority is now in the majority, showing that the heresthetical strategy is systematically successful.