Constitution Daily

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Reading a dissent from the Supreme Court bench

July 18, 2014 by Andrew Lowy


SCOTUS_AuthorityOfLawReading a dissent from the bench is a bold move for a Supreme Court Justice. As Justice Ruth Bader Ginsburg demonstrated a few weeks ago in Burwell v. Hobby Lobby, it signifies severe disagreement with the majority opinion.


Although they do not carry legal weight and do not represent the Court’s ruling, dissenting opinions are considered a crucial part of the Court’s work.


Chief Justice Charles Evan Hughes remarked that a dissent is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the Court to have been betrayed.” Justice Benjamin Cardozo said a dissenting Justice speaks “to the future,” with “his voice pitched to a key that will carry throughout the years.”


If writing a dissent is an appeal to the reason of future generations, reading a dissent is a scream for reconsideration. It publicly proclaims that the Court’s latest decision, announced mere moments before, is wrong—hardly a sign of a unified bench.


In addition to revealing a deeply divided Court, reading a dissent can lead to courtroom drama.


Justice John McLean and Justice Benjamin Curtis each read his dissent in Dred Scott from the bench. Collectively, they spoke for five hours criticizing Chief Justice Roger Taney’s majority opinion—now recognized as one of the worst rulings in the Court’s history. According to the New York Tribune, Curtis “ground up the very bones of the Chief Justice’s argument”—striking a chord with Abraham Lincoln, who kept a copy of the dissent in his pocket during his debates with Stephen Douglas.


Chief Justice Harlan Stone fell sick while reading his dissent in Girouard v. United States and died later that day.


Justice Clark McReynolds, responding to the Gold Clause Cases, flung his papers to the floor in open court and proclaimed, “The Constitution is gone!


And in its coverage of Pollock v. Farmers’ Loan and Trust Company, the New York Sun observed that Justice John Marshall Harlan “pounded the desk, shook his finger under the noses of the Chief Justice [Melville Fuller] and Mr. Justice [Stephen] Field, turned more than once angrily upon his colleagues of the majority, and expressed his dissent from their conclusion in a tone and language more appropriate to a stump speech at a Populist barbecue than to an opinion on a question of law before the Supreme Court of the United States.”


Such instances have drawn criticism of the practice. Justice Sonia Sotomayor, for example, has called oral dissents “entertainment for the press.” Nonetheless, other Justices continue to affirm their importance.


Retired Justice John Paul Stevens recalled in his memoir, Five Chiefs, that Justice John Marshall Harlan II strongly believed that at least one dissenter each term should announce his or her opinion from the bench. Harlan, Stevens wrote, “thought that such announcements revealed qualities of some of our disagreements that could not be adequately expressed in writing.”


Stevens made it a point during his tenure on the Court to continue this tradition by informing newly appointed Justices of Harlan’s legacy. According to Stevens, Justice Antonin Scalia’s first oral dissent—a lone vote in Morrison v. Olson—was a result of Stevens’ personal outreach.


Oral dissents can also serve a practical purpose, particularly when the case is decided on statutory, rather than constitutional, grounds. This is perhaps most evident in Justice Ginsburg’s dissent in Ledbetter v. Goodyear Tire and Rubber Company.


Lilly Ledbetter was an employee of Goodyear Tire who was underpaid in comparison to her male co-workers. By a 5-4 vote, the Court ruled that Ledbetter did not have standing to sue Goodyear Tire for all of her years of discriminatory pay because of a statute of limitations. Ledbetter could only seek legal redress for her most recent paychecks.


Reading from the bench, Ginsburg proclaimed, “No sensible judge would tolerate such inexcusable neglect.” Then, in a call to action, Ginsburg ended her lengthy oral dissent by saying, “The ball is in Congress’s court.”


Shortly after the Court’s announcement, Congress drafted legislation to address situations similar to those faced by Ledbetter. Furthermore, the issue of sex discrimination in the workplace became a leading issue in the following election cycle.


When the Court decides a case based on statutory law, Congress is in a position to change that law and, in effect, to overturn the Court’s ruling. For this reason, Justices in the minority can increase the chances of a case being legislatively overturned by reading a dissent statement in such cases. Press coverage shines a spotlight on the issue and adds public pressure for action outside of the Court.


Ginsburg’s oral dissent in Hobby Lobby was no different. It marked a deep divide in the 5-4 split. And although she did not specifically call on Congress to change the law, nor did she employ the same caliber of theatrics as that of her predecessors, Ginsburg flagged Hobby Lobby as a case to watch for the future.


Andrew Lowy is an intern at the National Constitution Center.


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