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William Blake in the Associated Press

Pandemic means a silent June at the Supreme Court

By Jessica Gresko

WASHINGTON (AP) — It’s the time of the year when Supreme Court justices can get testy. They might have to find a new way to show it.

The court’s most fought-over decisions in its most consequential cases often come in June, with dueling majority and dissenting opinions. But when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court. Dissenting justices exercise what a pair of scholars call the “nuclear option” just a handful of times a year, but when they do, they signal that behind the scenes, there’s frustration and even anger.

The coronavirus pandemic has kept the justices from their courtroom since March and forced them to change their ways in many respects. Now, in their season of weighty decisions, instead of the drama that can accompany the announcement of a majority decision and its biting dissent, the court’s opinions are being posted online without an opportunity for the justices to be heard.

University of Maryland, Baltimore County political science professor William Blake, who co-authored the article calling oral dissents the nuclear option, says a June without them would be a “missed opportunity.” They are “a chance to see the justices as exhibiting emotions,” not just the logic of their opinions, he said.

Justice Ruth Bader Ginsburg has said that an oral dissent “garners immediate attention.”

“It signals that, in the dissenters’ view, the court’s opinion is not just wrong, but grievously misguided,” she has said.

The act of reading can also be a signal to Congress. In a 2007 dissent Ginsburg read from the bench, she called on lawmakers to overturn her colleagues’ decision in a case about equal pay for women. Congress did, passing the Lilly Ledbetter Fair Pay Act. Ginsburg’s oral dissent underscored her belief that urgent action was needed, even if it wasn’t the only reason lawmakers acted.

University of Minnesota professor Timothy Johnson, who has written about oral dissents, says justices also reach the public through them. “If you can have a vociferous enough dissent from the bench you’re going to get the nightly news to talk about it,” he said.

The court, which heard arguments in 10 cases by phone last month, hasn’t said what would happen this year if a justice wants to note that they would have read a dissent aloud or if there’s a way they might still do so. But there are several cases remaining to be decided where a dissent from the bench might have happened in normal times.

Decisions that divide the court 5-4 are more likely to generate the passion that prompts a dissenting justice to speak up, research shows. This year, unresolved cases about gay and transgender rights, President Donald Trump’s decision to wind down the Deferred Action for Childhood Arrivals immigration program and restrictions on abortion in Louisiana might have produced dissents read aloud.

Dissents from the bench in contentious cases go back to the 1940s. In 1973, Justice Byron White read aloud a dissent in Roe v. Wade, the abortion rights case. A 1978 case invalidating a University of California affirmative action program resulted in four concurring and dissenting statements from the bench. And in 2006, justices Antonin Scalia and Clarence Thomas read dissents when the court rejected a Bush administration plan to try Guantanamo Bay, Cuba, detainees before military commissions.

In the last decade, justices have read an average of between four and five dissents a year, according to a list maintained by Supreme Court librarian Jill Duffy and the Federal Judicial Center’s Elizabeth Lambert. The most recent year they found no oral dissents was 1984.

Oklahoma State University professor Eve Ringsmuth, who plays recordings of both opinion announcements and oral dissents for students in her undergraduate courts class, says they’re a valuable resource because they’re often more easily understood than the actual decision. Students frequently remark, “Wow, that was so clearly explained,” she said.

Justices’ spiciest spoken words are usually in their written dissents, but occasionally what they say in their oral summary is memorable. Dissenting from the bench in a 2007 case that invalidated school desegregation efforts, Justice Stephen Breyer criticized his colleagues, saying “it is not often in the law that so few have so quickly changed so much.” That line didn’t appear in his written opinion, but it captured Breyer’s sour mood at the end of a term in which he was often in dissent and the two newest justices, Chief Justice John Roberts and Justice Samuel Alito, were in the majority.

Over the last decade, Breyer and Ginsburg have been the most prolific oral dissenters, reading about a dozen times each. Alito and Justices Elena Kagan and Sonia Sotomayor have each read three or four times in that time while Thomas has only read twice since joining the court in 1991. Roberts’ lone oral dissent came in 2015 when the court ruled that gay couples have a right to marry nationwide. His decision to read aloud may have kept Scalia from reading from his own more fiery opinion. The court’s newest members, Justices Neil Gorsuch and Brett Kavanaugh, have yet to read a dissent aloud.

Arkansas State University professor Hans Hacker, Blake’s co-author, calls dissents from the bench a “piece of how the Supreme Court interacts with the public.” But, he said:, “that tool doesn’t seem to be available at the moment.”

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William Blake in the Baltimore Sun

Bring Back O’Connor

The death of Justice Antonin Scalia has already deepened the divide in American politics. Even when the president’s party controls the Senate, Supreme Court confirmations are difficult; just ask President George W. Bush about what happened with Harriet Miers. In the midst of an open-seat presidential election, and with the White House and Senate controlled by opposing — and increasingly polarized — parties, it might seem impossible for President Barack Obama to put a new justice on the bench.

The key word there is new. To minimize the chances of a Senate filibuster, President Obama should nominate Sandra Day O’Connor. There is historical precedent for reappointing a former justice: Charles Evans Hughes stepped down from the court to run for president in 1916; in 1930, he rejoined the court as chief justice.

Justice O’Connor is nearly 86 years old, which would normally be considered a liability. Under these circumstances, her age is a significant asset. She is more than capable of serving on the court for a year or two, after which she could retire and the new president could use his or her political mandate to appoint a younger justice. Reappointing Justice O’Connor would benefit President Obama, the court, and, most importantly, the American people.

In 2006, Justice O’Connor retired from the Supreme Court to care for her ailing husband. Since his death, she has used her status as a retired justice to hear several important cases on the federal courts of appeal. Her ability to write pragmatic judicial decisions hasn’t diminished with age.

Justice O’Connor’s view of the law is a product of her remarkable life. Unlike the career judges who comprise the rest of the court, Justice O’Connor took a different path. Before becoming a judge, she was the Republican majority leader of the Arizona Senate — the first woman in American history to lead a state senate. Elected officials bring a different perspective to the bench; Chief Justice Earl Warren, author of Brown v. Board of Education, engineered many crucial unanimous decisions using the instincts he honed as governor of California.

During her time on the bench, Justice O’Connor was frequently labeled the court’s swing justice, but that term is deceptive. It’s not that she’s some easily-swayed judicial fence-sitter; it’s that her jurisprudence doesn’t fit neatly into an ideological box. She crafted carefully worded opinions, deciding cases on narrow legal grounds to prevent unforeseen social consequences.

Usually, presidents relish the opportunity to replace a justice appointed by a president from the opposite party. With less than a year in office, President Obama has little chance of moving the court significantly to the left, but he could keep the court fully staffed. Moreover, nominating Justice O’Connor would increase gender diversity on the court and would be consistent with President Obama’s (often unsuccessful) philosophy of forging consensus and compromise.

Nominating Justice O’Connor would also be a shrewd political move. Republican leaders routinely tout President Reagan as an icon; a vote against confirming Justice O’Connor would be an admission that the patron saint of the modern Republican Party wasn’t infallible. Senate Republicans couldn’t question Justice O’Connor’s credentials. And they would be unable to cast her appointment as one that would shape the court for the next generation.

Beyond the Beltway political maneuvering, however, lies the greatest virtue of this Supreme Court compromise. With only eight justices, the Supreme Court risks tie votes in several crucial cases this term. In a 4-4 decision, the ruling of the lower court stands, and no precedent is set. It is as if the justices never heard the case in the first place.

A key function of the Supreme Court is settling disputes among the lower courts about how to interpret the Constitution and federal law. The Constitution cannot mean one thing in Alabama and something else in Wyoming. For the court to carry out its mission, it needs to avoid tie votes.

One way or the other, the presidential election will decide the long-term future of the court. The only question is whether President Obama and Senate Republicans are more interested in scoring political points or keeping the court functioning this year. Reappointing Justice O’Connor is the best way to achieve the latter. And, if an O’Connor appointment wins over public support, the eventual presidential nominees on either side will need to address the question of whether a doctrinaire liberal or conservative judicial philosophy truly is preferable to a pragmatic jurisprudence.

The one thing this election season has taught us is that the traditional political playbook no longer works. The same logic applies to this Supreme Court vacancy.

William Blake ( is assistant professor of political science at the University of Maryland, Baltimore County. Hans Hacker is associate professor of political science at Arkansas State University.

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Legislative Looting: The Filibuster and the Founders

Longtime Capitol Hill staffer, Richard Arenberg, has written an op-ed in Politico defending the filibuster.  Arenberg offers an historical justification that is as flawed as it is simplistic.  He writes:

The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.

The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.”

On the former argument, Arenberg is paraphrasing from Federalist 10, a pamphlet written (we now know) by James Madison, in support of the Constitution.  However, Arenberg totally misrepresents the filibuster as solution to majority tyranny.  Madison’s argument does not mention legislative minorities at all, save for this: “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables a majority to defeat its sinister views by regular vote.”

Madison writes more extensively about legislative rules in Federalist 58. Here, he discusses the Constitution’s quorum requirement – that only a simple majority of members of Congress need to be present to conduct business.  Madison observes:

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.

Madison admits that requiring a large portion of members of Congress to be physically present would make Congress more deliberative, but it creates a problem that is much worse: it would undermine energy in government.

Alexander Hamilton, another contributor to the Federalist Papers, shared Madison’s fear.  In Federalist 22, Hamilton contends:

The necessity of unanimity in public bodies, or of something approaching towards it, has been formed upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.

(If you think the use of the word junto seems extreme, consider the word filibuster.  It evolved from a Dutch word for piracy – a quite literal tyranny of the minority.)

The Constitution was drafted because the existing governmental framework, the Articles of Confederation, put the United States on the brink of collapse.  The Articles failed in no small part because of its requirement for a supermajority vote in Congress to pass any law.

The modern Congress has brought the country back, once again, to the brink of a government shutdown, and the wanton abuse of the filibuster also plays a significant role in this being the most “do-nothing Congress” in American history.

Moving to Arenberg’s second argument: the fact that equal representation in the Senate is (essentially) an unamendable clause in the Constitution makes it a really important part of the American democratic system.  What Arenberg fails to acknowledge is the immediate preceding clause in Article V, which is the only other part of the Constitution that was, at least, temporarily, unamendable.

For the first twenty years of this Constitution’s history, Congress could pass no law, and the country could pass no constitutional amendment that would regulate or abolish the international slave trade.

The Constitution is full of praiseworthy clauses, but it also contains at least one downright evil clause.  And this clause was considered so important to the functioning of American democracy, that it could not be changed for a generation.

Every senator who has ever defended the practice of filibustering has said it promotes deliberation and compromise.  Arenberg and co-author Robert Dove expand on this argument in their book, Defending the Filibuster: The Soul of the Senate, which discusses other parts of the Federalist Papers, but makes no mention these crucial Madisonian or Hamiltonian arguments.

As I have argued elsewhere, many more Founders considered the advantages of supermajority votes and rules allowing extended debate in Congress, and, ultimately, rejected them.

Designing a lasting system of democratic government required careful planning.  Thus, the debate over filibuster reform deserves more than platitudes from a middle school civics curriculum.

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Fun with Google Ngrams

Supreme Court, Congress, President

Judicial Activism, Judicial Restraint

Positivism, Natural Law

Rational Choice

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On methodological common ground

My good friend Hans Hacker has written an excellent post regarding the methodological divide in public law.  Qualitative and quantitative accounts of courts have a similar objective:

Political scientists really do prefer that their theories reflect (to the extent possible) the reality that confronts them. So, we began to look more closely at what amounts to . . . stories. And, we used the themes emerging from those stories to tell a better story ourselves using statistical methods. Or, as a social scientist might put it, our theories attempt to connect facts, interpret them, and uncover their relationships to reflect what we see happening in the world. This is the same basic goal of story-telling.

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Hello world!

Welcome to Footnote 11, a blog located at the intersection of law and social science.  My goal for this blog is to tackle issues in law and political science in a thought-provoking and evidence-driven way.  I hope to write one post or so per week.

I believe introductions are in order.  My name is William Blake, and I am a graduate student in the Government Department at the University of Texas at Austin.  It should come as no surprise that my concentration is in public law.  You can read more about me at my website.

The name of this blog comes from Footnote 11 of the Supreme Court case Brown v. Board of Education, decided in 1954.  The footnote references several psychology and sociology studies as evidence that racially separate schools impeded the cognitive and emotional development of black students.  Chief Justice Earl Warren has been criticized for basing so much of his opinion on these studies, but as a future social scientist, I vehemently disagree.  Judges are, to a certain extent, policymakers, and it would behoove judges to consider objective social science evidence to understand more fully the implications of their decisions.

More information about Footnote 11 is available on the About page.

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