SCOTUS for law students (sponsored by Bloomberg Law): Dissenting from the bench
When a Justice reads some or all of a dissenting opinion aloud in the Courtroom, it instantly captures the attention of those present and changes the atmosphere in the small, ornate chamber. It happens so infrequently that it adds an air of excitement to the room and of gravitas to the opinion.
That drama was on full display as the Court concluded its Term last week with blockbuster rulings. Justice Ruth Bader Ginsburg read dissents in the Courtroom on Monday and Tuesday, and Justice Antonin Scalia followed suit on Wednesday.
So it is fair to ask: when do Justices decide to read their dissents from the bench? The answer is: whenever the spirit moves them, which is not very often.
Since many law students who have an interest in the Court have never actually made it to see the Justices live, let us first set the scene.
During an average Term, the Court decides somewhere between seventy and eighty cases on the merits, with the arguments in those cases occurring between October and late April. The Court will announce its decisions in those cases in one of three scenarios: at the start of a day on which the Court is about to hear oral arguments in other cases; on a Monday at the end of a two-week argument period; or in May or June when the Court is no longer hearing new arguments, so that releasing rulings and orders in pending cases may be the only thing on the agenda (with the possible exception of admitting new attorneys to the Supreme Court bar) for a Court session.
When the Justices release decisions in argued cases, the Chief Justice indicates which case is being decided and who will announce the decision. The Court announces opinions in order of reverse seniority – that is, beginning with the junior-most Justice who has an opinion that day and working up in seniority to the Chief Justice, who is always the most senior Justice regardless of how long he has been on the Court. The author of the majority opinion usually reads a summary of the ruling that provides key facts, the outcome in the appeal below, and then a brief description of the Supreme Court’s holding and reasoning.
For the overwhelming majority of decisions, that is all there is. Even if the written opinion is accompanied by a dissent or concurrence, those separate opinions are generally not read or summarized in open Court. During the October Term 2011, for example, which ran through late June 2012, the Justices announced sixty-five decisions. Although there were dissents in sixty percent of the cases, the Justices read dissenting opinions from the bench in only six cases – and that number was higher than unusual. In the October 2010 Term, Justices read dissents from the bench in only four cases. And in the October Term 2012, which just ended, Justices read a total of seven dissents – covering eight cases – from the bench.
These statistics are kept up to date by Jill Duffy, a Supreme Court research librarian, and Elizabeth Lambert, a lawyer at the Federal Judicial Center, who published an article in 2009 in the Law Library Journal entitled, Dissents from the Bench: A Compilation of Oral Dissents by U.S. Supreme Court Justices. But the statistics do not answer the question of when a Justice decides to take the unusual step of reading a dissent.
The most obvious answer is that Justices read their dissents aloud when they feel very strongly about the issue and either want to underscore the significance of their views or, perhaps, have some concern that the importance may not be fully understood or appreciated. To read a dissent aloud is to give it much extra emphasis, and that suggests a strong and deeply felt level of disagreement with the Court’s majority. In the ten Court Terms before the current one, Justices Breyer and Scalia each read dissents aloud nine times and Justice Ginsburg eight times. Justice Stevens who left the Court in June 2010, had the high total, reading nine dissents in only eight Terms.
Of course, this does not mean that Justices who do not read their dissents from the bench necessarily feel less strongly about their message. Some Justices simply follow the practice less often. Chief Justice Roberts and Justice Sotomayor have not read any, while in the past ten Terms Justices Kennedy, Thomas, Alito, and Kagan have read only one each.
What are some examples of dissents that moved the authors to read them aloud? The audio recordings of decision announcements, which are made by the Court and then turned over to the National Archives some months after the Term is over, and subsequently posted at the Oyez website, provide some insight. Not surprisingly, the ruling last June upholding major portions of President Obama’s health care plan, the Affordable Care Act, deeply divided the Court and produced multiple opinions. Justice Kennedy read portions of his dissent, seemingly for two reasons. First, he wanted to underscore the votes and organization of a complex set of opinions that upheld the individual insurance mandate under Congress’s taxing power but rejected its power to regulate interstate commerce and invalidated the compelled expansion of Medicaid in the states. Second, he wanted to emphasize the importance in constitutional structure of the Court’s rejection of Congress’s commerce power because, as he said, “structure means liberty.” Taking the opposite and equally emphatic view of the Commerce Clause issue, Justice Ginsburg read portions of her concurring and dissenting opinion, calling the rejection of Congress’s commerce power a “stunning setback.”
Justice Ginsburg has gained some attention in recent years for her oral dissents, especially those she read in cases involving women’s rights, which she championed as a Supreme Court advocate long before she became a Justice. She read her dissent in Ledbetter v. Goodyear Tire & Rubber Co., the 2007 ruling clamping down on the time limit for filing pay discrimination claims. She urged Congress to “correct” the majority’s “parsimonious reading” of federal anti-discrimination law – which it eventually did. One Term earlier, she dissented aloud in Gonzales v. Carhart when the Court upheld a federal ban on so-called “partial birth” abortions, calling the majority’s ruling “alarming” and “an effort to chip away” at a right central to the rights of women.
Last week, she read three dissents aloud, including the unusual step of two in one day. On Monday, June 24, Justice Ginsburg summarized her sharp disagreement with the ruling in Fisher v. University of Texas , in which the Court toughened standards for using race in higher education admissions for affirmative action. Moments later, she read a summary of her view that the Court was unrealistic in its understanding of the workplace in two cases involving employment discrimination under Title VII. On Tuesday, June 25, Justice Ginsburg voiced her disagreement from the bench as the majority invalidated a crucial provision of the Voting Rights Act in Shelby County v. Holder.
Justice Breyer took the lead in the oral dissent in 2007 in Parents Involved in Community Schools v, Seattle School Dist. No. 1, in which the Court restricted the ability of school districts to voluntarily use race in assigning students to schools to achieve diversity. He said the Court’s ruling was one the Justices and the country “would come to regret,” one that threatened the unfulfilled promise of Brown v. Board of Education.
When the Court in 2006 ruled that Congress and the President had not properly convened a military commission to try Salim Hamdan at Guantanamo Bay, that was too much not only for Justice Scalia, but surprisingly, for Justice Thomas, who remains silent in the Courtroom except when announcing his own majority opinions. As he read his dissent, Justice Thomas noted that this was his first dissent from the bench in fifteen years. He called the issue “a core exercise of the president’s commander-in-chief authority,” and said the Court’s review was “unprecedented.”
Justice Scalia’s dissents from the bench seem most passionate when he thinks the Court has effectively rewritten the Constitution, an action he thinks the Justices have no authority to do. In 2006, he read a summary of his dissent from the bench in Roper v. Simmons when the Court ruled that executing juveniles violated the Eighth Amendment guarantee against “cruel and unusual punishment.” He called this an “implausible result,” accusing the majority of proclaiming itself “sole arbiter of our nation’s moral standards.”
And in the current Term, Justice Scalia read the two most lively dissents from the bench. On Wednesday, June 26, he shared his strong disagreement with the majority’s ruling striking down a portion of the Defense of Marriage Act in United States v. Windsor. A few weeks earlier, he read parts of his dissent in the case of Maryland v. King, in which the Court ruled that police may routinely take a DNA swab from persons arrested and taking to the stationhouse. The audio for the dissents from the most recent Court Term will not be released until October, but according to news reports, his oral account used some of the most compelling language from his written dissent, questioning whether the leaders of the American Revolution would have tolerated an order from British authorities to open their mouths for a DNA swab.
Some Justices have observed in their dissents or in other commentary that they consider the sporadic reading of oral dissents from the bench an important part of the Court’s modern traditions. Given the divisions on the Court in recent Terms and today over major cases, it is a tradition that seems readily assured of continuing.