Category Archives: In the Media

William Blake in Reuters

Summary Judgments for March 22

By Carlyn Kolker

I, dissent


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.

Leave a comment

Filed under In the Media

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.

Leave a comment

Filed under In the Media

William Blake Cited in the Washington Post

You can’t blame the Framers for the filibuster

By Ezra Klein

Thumbnail image for breakingthefilibuster.jpg

If Democrats really do try to reform the filibuster Jan. 5, we’re likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.

But whatever you think of the filibuster, this argument isn’t true. The delaying tactic — which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate — is not in the Constitution. It wasn’t envisioned by the Founding Fathers. Quite the opposite, actually.

As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in ‘Federalist 58,’ went at the supermajority directly:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.

As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee (“cool it”), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn’t make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.

This leads to an obvious question: If it’s not in the Constitution, and it wasn’t built into the Senate from the start, where does the filibuster come from? Well, it was an accident.

All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that’s not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.

But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it’s worth setting the record straight. The Constitution didn’t create the filibuster. The Framers didn’t intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it’s bad, but either way, it’s ours.

Leave a comment

Filed under In the Media