William Blake Cited in the New York Times

In a Polarized Court, Getting the Last Word


Published: March 8, 2010

A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain. The practice is on the rise, and it is suggestive of an increasingly polarized court.

“Dissenting from the bench,” a new study to be published in Justice System Journal contends, is a sort of nuclear option that “may indicate that bargaining and accommodation have broken down irreparably.”

Yes, a new study. Academic scrutiny of almost every aspect of the Supreme Court is oppressively comprehensive, and now three sets of researchers have identified the empirical analysis of oral dissents as a new frontier.

Over the 36 years Warren E. Burger and William H. Rehnquist served as chief justices, there were on average three dissents read from the bench each term. In the first four years of the court under Chief Justice John G. Roberts Jr., the number rose by a quarter, to 3.75.

So far this term, there has been only one oral dissent, but it was a doozy. Justice John Paul Stevens spent 20 minutes in January rebutting the majority decision in Citizens United, the big campaign finance case.

That brings the total number of oral dissents in the Roberts court to 16, and all but three came from the court’s liberal wing. The exceptions were protests from Justices Antonin Scalia and Clarence Thomas over decisions in favor of prisoners at Guantánamo Bay.

There is, of course, an element of stagecraft to oral dissents. If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

“The majority’s treatment is a disgrace,” she wrote in a memorandum to the justice that became public when his papers were released “and it’s well worth making clear to everyone what the case is really about.”

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

“I think Friday is a bad day to have the case brought down,” she wrote. “A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead.”

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Justice Stevens has spoken up in dissent more often than any other current justice, but that is largely a testament to his longevity. He has written about 600 dissents in his almost 35 years on the court. But he has dissented from the bench just over 20 times.

In percentage terms, Justice Ruth Bader Ginsburg holds the modern record. She has read more than 10 percent of her dissents from the bench, according to the study in Justice System Journal, by William D. Blake, a graduate student in the government department at the University of Texas, and Hans J. Hacker, a political scientist at Arkansas State University.

In 2007, Justice Ginsburg called upon Congress from the bench to reverse what she called the majority’s “parsimonious reading” of an employment discrimination law in Ledbetter v. Goodyear Tire & Rubber Co. Congress did so last year.

Scholars are split about what role ideology plays in generating oral dissents. One study by Timothy R. Johnson, Ryan C. Black and Eve M. Ringsmuth in the Minnesota Law Review last year found, as one might expect, that ideological opposites are more likely to dissent from the bench. But Mr. Blake and Mr. Hacker make the case that disappointed ideological allies are the most likely oral dissenters. It is your friends, their study suggests, who drive you crazy.

There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.

The list shows that the Roberts court is generating lots of notable oral dissents. Here, for instance, is what Justice Stephen G. Breyer had to say from the bench when the court announced its 2007 decision sharply limiting the role race could play in school assignments: “It is not often in the law that so few have so quickly changed so much.” Those words do not appear in his written dissent.

Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.

“In 15 terms on the bench,” he said, “I have never read a dissent from the bench, but today’s decision requires that I do so.” But Justice Thomas’s memory failed him. He had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

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