By Carlyn Kolker
It’s been a dramatic couple of days for dissenting at the Supreme Court. On Tuesday, Justice Ruth Bader Ginsburg read her dissent from the bench in a case about the right of state workers to sue under the Family Medical Leave Act. “The inequality Congress sought to overcome seems to me well within the national legislature’s authority to address,” said Ginsburg, who disagreed with the majority that states can’t be sued for damages under a section of the leave act, according to Reuters’ Jim Vicini. The next day it was Antonin Scalia’s turn to speak out. The majority’s position in two connected criminal cases — that defendants have a constitutional right to receive adequate instructions from counsel about plea bargain options — was “absurd,” Scalia said, according to the Associated Press. “In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just, convictions. It is not wise; it is not right,” Scalia said, according to Reuters.
Reading a dissent from the bench is not new, but is a way of telling your colleagues that you really, really disagree with them. It’s also a practice that is on the rise, according to a 2010 article in the scholarly Justice System Journal, called “The Brooding Spirit of the Law”: Supreme Court Justices Reading Dissents from the Bench. The article says the average number of dissents from the bench has gone up during the leadership of Justice John Roberts, to 3.75 per term. Scalia and Ginsburg are both, in percentage terms, frequent dissent readers: Ginsburg read about 10.6 percent of her dissents from the bench – the most of any justice in percentage terms – and Scalia, 7.9 percent, according to the paper, by William Blake, a graduate student in government at the University of Texas and Hans Hacker, a political science prof at Arkansas State University.
A few other notable examples of justices reading their dissents from the bench, courtesy of Adam Liptak: In 2010 John Paul Stevens spent 20 minutes reading out his dissent in the Citizens United case. In 2007, Ginsburg read a dissent in the employment discrimination case Ledbetter v. Goodyear Tire & Rubber Co. And Scalia and Clarence Thomas read dissents in cases that gave more judicial process rights to Guantanamo Bay prisoners.
There are some big cases this term – health care comes to mind. Maybe we’ll hear more dissents in the coming months.