|Oregon State Bar Bulletin OCTOBER 2008|
The release of an opinion in the Supreme Court of the United States is a moment of unusually high drama. Decisions are not merely sent out as written; instead, they are announced in open court, with no advance notice to the public of either the disposition or even the fact that the opinion will be issued that day. The morning begins like any other when the Court is in session. A buzzer is heard, a gavel slams, all persons present rise to attention, and the justices emerge through curtained entries behind the bench as the marshal of the Court recites the traditional invocation calling the Court to order. Even for those who have observed this ritual many times, it still induces a hushed reverence. And that is only the beginning.
If the Court has an opinion that is ready for public release, the chief justice announces that a decision has been reached. The justice who wrote the majority opinion then speaks for several minutes about the case, summarizing the facts and legal issues and explaining the basic reasoning behind the Court’s disposition. He or she concludes by noting those justices authored and joined concurring or dissenting opinions. By this point, those with a stake in the case are overwhelmed and barely able to contain themselves from racing from the courtroom to call their friends, while those with no stake or interest may begin to glaze over. But on a rare day the Court will issue a decision of particular national importance to all assembled, and on a rarer day still, a justice who wrote a dissenting opinion will actually announce the dissent from the bench, generally reading aloud from the dissent itself. In the cloistered world of the Supreme Court, this seemingly minor gesture is the sign of ultimate disapproval, and its impact can be powerful. For to sit in the courtroom and hear why the Court’s freshly announced decision is profoundly mistaken — in the indignant voice of a Justice Scalia or the incredulous tone of a Justice Breyer — is to recognize that whatever your view on the particular case, it is one that produced great division among the justices, and one that is likely to reverberate in American law for decades to come.
There has been little systematic examination of dissents from the bench, but the practice surely deserves more attention after last term. A dissent from the bench is an unusual event; most terms feature just a few, if any. But in 2006-2007, the justices read a modern record of seven dissents from the bench capped on the final day of the term by two oral dissents from Justice Breyer, one in which he spoke emotionally for nearly 20 minutes as his colleagues looked on in silence. What are the origins of this tradition, and how has it changed over the years? What is the impact of a dissent from the bench, both inside and outside the Court? And will a heretofore seldom-used method of expressing fundamental disagreement become de rigueur in the Roberts era?
From Modest Beginnings
The practice of reading dissents from the bench has an even longer historical pedigree than the reduction of an opinion to written form. In the Court’s earliest years, the justices did not write opinions at all; each justice instead delivered his views orally and in seriatim, the most junior justice speaking first. By the early 1800s, the modern practice of producing written opinions had taken hold, and the justices had also begun to issue “opinions for the Court” representing the views of all members of the majority (an innovation of Chief Justice Marshall). The purpose of reading from the bench thus changed, as it was no longer the principal way of announcing a decision to the bar. But the practice of dissenting from the bench endured.
While the justices’ inclinations to dissent from the bench (and even to file dissenting opinions at all) have surely changed over the years, no one has actually kept track of this practice. Nor have scholars analyzed this phenomenon very much. Aside from occasional newspaper reports, sporadic mentions in the Court’s official minutes, and more recent audio recordings, there’s no actual record of all instances in which justices announced a dissent from the bench. But at least some of the more memorable ones have been preserved for posterity. For example, in the infamous 1856 case of Dred Scott v. Sanford, in which the Taney Court held that African slaves were not citizens of the United States and that Congress lacked the power to ban slavery in the federal territories, it is reported that Justices McClean and Curtis read their dissents for five hours (the modern practice is to simply summarize a dissenting opinion rather than read the whole opinion word for word). Dissenting from the bench could also have severely unfortunate consequences. In Girouard v. United States, a 1946 case overruling prior precedent and allowing persons unwilling to bear arms for the United States to still receive citizenship, Chief Justice Stone suffered a stroke while reading his dissent in open court. He died several hours later.
Other dissents from the bench were less fatal but still prone to engendering acrimony between the justices. Justice McReynolds once became so irate during a dissent from the bench that he allegedly flung his papers to the floor and declared: “The Constitution is gone.” And in an 1895 case striking down as unconstitutional a federal income tax, Justice John Marshall Harlan’s dissent from the bench was so acerbic that it drew particular notice in the press. According to the New York Sun, Justice Harlan “pounded the desk, shook his finger under the noses of the Chief Justice and Mr. Justice Field, turned more than once angrily upon his colleagues of the majority, and expressed his dissent from their conclusions in a tone and language more appropriate to a stump speech at a Populist barbecue than to an opinion on a question of law before the Supreme Court of the United States.”1 Added the New York Tribune: “Old lawyers who had practiced at that tribunal for more than a quarter century sat aghast as sentence followed sentence.”2
Other dissents known to have been announced aloud in open court read like a veritable greatest-hits list of constitutional law: Justice Jackson dissenting in Korematsu v. United States (1944), which upheld the internment of Japanese-Americans during World War II; Chief Justice Vinson dissenting in the “Steel Seizure Case,” Youngstown Sheet & Tube Co. v. Sawyer (1952), which held that that President Truman lacked the power to seize steel mills during the Korean War; Justice White dissenting in Roe v. Wade (1973), which established a constitutional right to abortion; Justice Blackmun dissenting in Bowers v. Hardwick (1986), which upheld Georgia’s sodomy law; Justice Scalia dissenting in Morrison v. Olson (1988), which upheld the constitutionality of the Independent Counsel Act; Justice Stevens dissenting in Johnson v. Texas (1989), which struck down under the First Amendment a criminal conviction for flag-burning; and Justice Breyer dissenting in United States v. Lopez (1995), which struck down under the Commerce Clause the Gun Free School Zones Act. These, of course, are just a sampling.
From Rehnquist to Roberts
More comprehensive information is available from the Court’s more recent terms. From October Term 1994 to October Term 2006, there were approximately 42 dissents from the bench. October Term 2006 itself featured seven of those. Justice Scalia was the most repeat player, with nine. He was quickly followed by Justices Stevens and Ginsburg, each with eight, and Justice Breyer, who dissented from the bench seven times. Chief Justice Rehnquist, who passed away before October Term 2005, never dissented from the bench during this period. Also on the low end were Justices Kennedy and Thomas, who each dissented from the bench twice. Justice Kennedy’s figure is slightly augmented by the fact that he did read aloud from several partial concurrences during this period. But Justice Thomas’s two dissents from the bench, which came in Hamdan v. Rumsfeld (2006) (striking down military commissions at Guantanamo Bay), and Stenberg v. Carhart (2000) (holding unconstitutional Nebraska’s “partial-birth abortion” statute), are the only ones from his tenure on the Court.
As noted earlier, the Court’s 2006-07 term featured seven dissents from the bench, a modern record. All seven came from justices on the “liberal” side of the Court, six in cases decided by a 5-4 vote.3 These dissents did not go unnoticed in the press. Linda Greenhouse of the New York Times, for example, devoted an entire article to Justice Ginsburg’s two oral dissents.4 According to Greenhouse, Justice Ginsburg’s dissents from the bench were “passionate and pointed,” suggesting that October Term 2006 “will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.”
The Impact of Dissenting from the Bench
Whether to dissent from the bench is ultimately the personal decision of each individual justice; there are no rules governing when it is or is not appropriate. But when a justice does take the step of dissenting aloud, it may have effects both external and internal to the Court.
As an external matter, a dissent from the bench allows a justice to communicate to the public the gravity of the Court’s decision and depth of his or her disagreement with it. Most Americans learn about Supreme Court cases by reading the press coverage when an opinion is released. The Supreme Court press corps has intimate familiarity with the Court, its procedures, and sometimes even the justices as individuals. A dissent from the bench, widely understood in Court circles as the preeminent “official” method of voicing disapproval, is an immediately recognizable signal to these reporters that a justice believes the majority opinion is of unusual significance. Thus, newspaper articles covering a Supreme Court decision involving a dissent from the bench will typically mention that the practice is reserved for special cases and will also attempt to convey the drama of the moment when an oral dissent is delivered. When Justice Ginsburg delivered her oral remarks in the Ledbetter sex-discrimination case (2006 Term), for example, the Washington Post noted that reading a dissent aloud was “usually [a] rare practice,” and described Ginsburg’s words as “stinging.”5 Dissenting from the bench thus provides the justices with an outlet for explaining to the public their view that an important decision is particularly egregious, and may prevent the Court’s actions from getting lost in the day’s news. Of course, a harshly worded written dissent does not always guarantee a dissent from the bench, nor is there a dissent from the bench in every “big” case. For example, a five-justice majority held in 2007 in Massachusetts v. Environmental Protection Agency that Massachusetts had standing to sue the EPA for its failure to regulate automobile greenhouse gas emissions and that the EPA’s bases for refusing to regulate were unsound. The case was among the blockbusters of the term, and the chief justice wrote a strident dissent attacking the majority’s standing analysis. But he did not read his words from the bench.
A dissent from the bench can also call attention to an important decision that might otherwise have flown under the radar, and can likewise serve as the catalyst for changing the law. The most prominent example of both phenomena from 2006-07 is Justice Ginsburg’s dissent in the Ledbetter case. In that decision, a five-justice majority led by Justice Alito held that Lilly Ledbetter, a female employee at an Alabama Goodyear tire factory, had filed her pay discrimination suit outside the statute of limitations. By vocally expressing her sympathies for Ledbetter’s position, Justice Ginsburg surely shed additional light on the case. Her dissent from the bench, by this point her second of the term, generated widespread publicity. Hearings were convened on Capitol Hill almost immediately after the decision was announced and a bill was introduced to correct what some senators viewed as the Court’s misinterpretation of Title VII. On the campaign trail, Sen. Hillary Clinton specifically referenced Justice Ginsburg’s dissent from the bench, using Ledbetter’s story to argue that “boundaries” and “barriers” still persisted in America.6 It is difficult to imagine that Ledbetter’s case — which involved a fairly technical question of statutory interpretation — would have received as much attention had Ginsburg not raised her voice. But not every dissent has such an effect. For example, Justice Stevens’s dissent from the bench in the 8-1 Scott v. Harris decision — involving suspects injured in a high-speed police chase — did not appear to capture the press or public’s attention.
Dissents from the bench can also call public attention to a prevailing trend in the Court’s decision-making. It is likely no coincidence that Justices Stevens, Souter, Ginsburg and Breyer together delivered all of the seven dissents from the bench in a term that most observers characterize as one in which the Court’s conservatives achieved a near clean sweep in major cases. Indeed, one of the most memorable lines from Justice Breyer’s oral dissent in Parents Involved — “It is not often in the law that so few have so quickly changed so much” — could well serve as a theme for several of his colleagues’ view of the entire term. Interestingly, that line does not appear in his written opinion. In all of this, it is important to recall that unlike members of Congress, the justices are not nearly as free to talk about the Court’s internal dynamics. Dissenting from the bench can thus give the public a small but significant window into what life is like inside the Marble Palace.
In addition to the more external considerations just noted, it is also possible that dissenting from the bench can have an impact inside the Court as well. Just as rivals in a lawsuit occasionally need to vent, there may be something deeply satisfying about publicly excoriating your colleagues when you believe they have made a decision that is fundamentally misguided. And it may have an impact on future cases. For a justice who joined the majority opinion only after some hesitation, it may be unsettling to have that decision attacked at the same moment it is released. In some ways, this only highlights that an announced decision is not the end of that issue. After the justices reach a decision during their conference, they are unlikely to revisit it again as a group until after the decision has been written and announced. While the tenor of a written dissent may give some indication of a justice’s view, an oral dissent may be an important way to raise its profile for future related cases, when votes might be realigned.
Dissenting from the Roberts Era
What should we expect going forward from the justices on the Roberts Court? If recent history is in any indication, the chief justice’s quest for unanimity has not affected the justices’ inclination to raise their voices, at least for those justices in the dissent. On the other hand, dissenting from the bench is thrilling in part because it is rare. If it became common, it would lose its power. But those Court-watchers looking for a flash of high drama should not be too concerned that it will disappear altogether. The Court continues to accept review in a number of cases involving divisive issues. There are likely to be some dissents in these cases, and at least a few of them won’t be issued quietly.
1. David G. Farrelly,
Justice Harlan’s Dissent in the Pollock Case, 24 S. Cal. L. Rev. 175,
177 (1951) (quoting Carl Swisher, American Constitutional Development 451 (1943)).
2. Id.(quoting New York Tribune, >May 21, 1895).
3. Justice Stevens
dissenting in Scott v. Harris (holding that police did not use excessive
force when terminating a high-speed car chase), and Uttecht v. Brown (holding
that a trial court did not err in removing a juror who had expressed
uncertainty about applying the death penalty); Justice Souter dissenting in Federal
Election Commission v. Wisconsin Right to Life (sustaining as-applied First
Amendment challenge to federal campaign finance law); Justice Ginsburg
dissenting in Gonzales v. Carhart (upholding federal “partial-birth
abortion” statute) and Ledbetter v. Goodyear (holding untimely a Title
VII sex-discrimination claim); Justice Breyer dissenting in Leegin Creative
Leather Products, Inc. v. PSKS, Inc. (overruling 1911 precedent and holding
that vertical minimum price restraints are not per se illegal under the Sherman
Act) and Parents Involved in Community Schools v. Seattle School District
No. 1 and Meredith v. Jefferson County Board of Education (holding
unconstitutional Seattle and Louisville race-based student
4. Linda Greenhouse, “Oral Dissents Give Ginsburg a New Voice on the Court,”
New York Times, May 31, 2007
5. Robert Barnes, “Over Ginsburg’s Dissent, Court Limits Bias Suits,”
Washington Post, May 30 2007
6. Patrick Healy, “Campaigning as Trailblazer, By Proxy and Association,” New York Times, June 12, 2007, at A18.
ABOUT THE AUTHORS
The authors all previously clerked at the U.S. Supreme Court. Jeff Bleich is a litigator at Munger, Tolles & Olson in San Francisco who clerked for the late Chief Justice William H. Rehnquist in the 1990 term and lectures on constitutional law at UC Berkeley School of Law. He is the 2007-08 president of the State Bar of California. Michelle Friedland is a litigator at Munger, Tolles & Olson in San Francisco who clerked for Justice Sandra Day O’Connor in the 2001 term and has taught federal jurisdiction at Stanford Law School. Aimee Feinberg is a litigator at Munger, Tolles & Olson in San Francisco who clerked for Justice Stephen Breyer in the 2004 term.. Dan Bress clerked for Justice Scalia in the 2006 term..
Jeff Bleich is a frequent contributor to the OSB Bulletin. The authors’ articles on the Supreme Court appear regularly in the San Francisco Attorney magazine, published bi-monthly by the Bar Association of San Francisco. This article appeared in the San Francisco Attorney Spring 2008 issue.
The authors wish to thank Jill Duffy of the Supreme Court Library and Kathy Shurtleff of the Supreme Court Historical Society for their help in researching this article.
© 2008 Jeff Bleich, Michelle Friedland, Aimee Feinberg, Dan Bress.