WASHINGTON – 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.”