111 Iowa L. Rev. 655 (2026)
Abstract
The judicial voice on an appellate court typically speaks in the collective, so when a judge chooses to go solo—either in a dissent or a concurrence—that act deserves a close look. Separate opinions on the U.S. Supreme Court are common because the Justices have strong incentives to articulate a distinctive personal jurisprudence. But lower court judges have always been more reluctant to write separately, and for good reason. The institutional design and longstanding practices of the U.S. courts of appeals are very different from the Supreme Court: Lower appellate court judges are bound by precedent in a different way, rarely sit all together, and embrace deep-seated norms that lean into anonymity and value consensus whenever possible. Unlike Supreme Court Justices who write to a national audience, the separate writings of appeals judges have historically been internally focused, directed to other circuit judges and the litigants.
Today, however, newspaper headlines increasingly reflect a new use for the judicial voice on the lower courts. Some federal appellate judges seem to be seeking celebrity status by using separate opinions to reach external national audiences. These judges are writing for “groupies,” in behavior that is perhaps auditioning for a future Supreme Court vacancy, proselytizing for a cause, mimicking the voices of the Justices, or all of the above. This is a marked change from the model of the judicial voice on the lower courts that judges appointed by both political parties have long embraced. And, because many of the users of this new voice were appointed by President Trump, his election to a second term makes this dynamic critical to consider now.
For this Article, we interviewed those who know the judicial voice best—over twenty-five federal appellate judges appointed by Presidents of both political parties. We asked them why they wrote separately, to whom they were writing, and (importantly) what changes they observed. Based on those interviews and original empirical work on new partisan patterns, we detail what makes a separate opinion beneficial to the healthy functioning of a lower court . . . and what makes it dangerous. Along the way we theorize the model of decision-making that is central to the identity of the lower courts, and we offer several reform suggestions for the future, including the elimination of separate filings in cases where the circuit turns down a petition for en banc review.