It appears there has been a slight increase in the reading of dissents from the bench over the past few years. Is this a sign of a more contentious and less collegial Supreme Court? It’s the subject of Adam Liptak’s latest “Sidebar” column.
“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. . . .
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.
ruuffles says:
Isn’t reading dissents just the flip side of reading majorities? The reading of the majority opinion itself is an aberration as no circuits do that, and many (most?) state supreme courts don’t either.
March 9, 2010, 9:15 amOSU3L says:
Or is it a sign of a statistical anomaly over a short period of time? :)
March 9, 2010, 9:25 amMatt says:
Can we dispose of the term ‘nuclear option’? Don’t get me wrong, I enjoy a good atomic war reference as much as the next guy, but its getting a little overused.
March 9, 2010, 9:32 amSarcastro says:
From now on, it’s the ‘Hitler option!’
March 9, 2010, 9:40 amMatt says:
If Hitler hadn’t existed would the internet had to create him?
March 9, 2010, 9:42 amterrivus says:
I think the better question to ask is, why do liberal Justices feel more compelled to read their dissents from the bench than conservative Justices? It would be interesting to know how often Rehnquist dissented from the bench in the 1970s, when he was often in the minority. My guess is, very seldom — even on matters where he thought the majority was profoundly wrong.
Another hypothesis I would like to see tested: when liberal Justices read from the bench, media reports describe their readings as “impassioned,” “emotional,” “stirring,” and the like. When conservative Justices do so, they are “scathing,” “sarcastic,” “angry,” and so forth.
March 9, 2010, 10:00 amanomdebus says:
A pop psychology explanation might be that people can get along better overall when they feel they can express themselves when they really need to.
“be like unto the boy”
March 9, 2010, 10:37 amWidmerpool says:
And let’s not forget that on at least one case Justice Ginsburg ended her opinion with the statement “I dissent” as opposed to “I respectfully dissent.” I can’t remember offhand the name of the case.
March 9, 2010, 10:40 amruuffles says:
Thanks to google, two can play at that game. Scalia ended his screed in Lawrence with I dissent.
http://www.law.cornell.edu/supct/html/02-102.ZD.html
Also, he did the same in Edwards v Aguillard (teaching of creationism) and Rankin v McPherson (threat against President Reagan and first amendment).
Regarding Ginsburg, I think you’re thinking of either Bush v Gore (which is separated out into its own paragraph rather with other sentences in a paragraph) or Ricci v Stefano.
March 9, 2010, 11:04 amSarcastro says:
I think we should politicize the statistics on who dissents from the bench! Who cares if our sample size is like 30 or so people, this is a huge issue! It’s almost as big as whether Ginsburg added respectfully in Bush v. Gore, which goes to the heart of our Republic.
I’m just not sure how Scalia can still have her over to his house what with all the disrespect in the air from 10 years ago!
March 9, 2010, 11:05 amruuffles says:
Hence the wine drinking.
March 9, 2010, 11:09 amSarcastro says:
She’s an alcoholic too? That figures. Probably from all the white liberal self-hate.
March 9, 2010, 11:28 amMatt says:
I find it interesting, but at the same time I found Kremlinology interesting too and this discussion reminds me a lot of those ones.
Maybe we could start a Supreme Court Fantasy League: you pick three justices to fill two slots: ‘concurranter’ and ‘dissenter’ (you can change players only between sessions). You get so many points for each of your justices for being in the the appropriate place i.e. concurrence/dissent, and bonus points for writing the majority position, reading their opinions, not respectfully dissenting, etc, etc.
March 9, 2010, 11:30 amSarcastro says:
http://www.fantasyscotus.net/
March 9, 2010, 11:34 amDave N. says:
Does the fantasy league give points if Justice Thomas actually speaks during an oral argument?
(Yes, it does happen. I was at an oral argument where he did)
Unrelated note: Sarcastro is in rare form today — and this is the perfect thread for him.
March 9, 2010, 1:14 pmFantasiaWHT says:
How does this actually happen? Does the Justice read it before the start of a different case? Does the Court all get together as a special occasion to read these things? Does the dissenting Justice go sit on the bench by herself to read it? Does he make a press release notifying people he will be reading it?
March 9, 2010, 2:55 pmWilliam Blake says:
Thanks for your interest in our paper. To answer terrivus’ question about Rehnquist read from the bench only once and then was in Planned Parenthood v. Casey. We did not do a content analysis of the way journalists describe a dissent being read from the bench, but it is an interesting idea. To get to Widmerpool’s comment – Justice Ginsburg has publicly denied that there is anything significant to using or not using the word “respectfully” in her dissents. Considering the salience of these cases where justices conclude “I dissent,” I doubt that Ginsburg’s position is very representative. FantasiaWHT, the process works like this: in every case the Court hands down, the majority opinion writer reads a summary of the majority opinion. If a justice wants to read a dissent, she does so after the summation of the majority opinion. Sometimes dissenters read a couple minutes worth of material, sometimes the display can take 10 minutes plus. The justices do not issue press releases, but any reporter who covers the Court understands that this is a significant occurrence and weaves it into the story.
March 9, 2010, 3:08 pmHerb Spencer says:
I’ve always been puzzled by the persistence of this practice beyond the 1920s or so. It seems a colossal waste of time and judicial resources just to stroke one’s own ego by “making a bold statement” ad alta voce. If you want to be on stage, 1st & 10: Ford’s Theatre. Or should I have said “Kennedy Center?” YIKES!
March 9, 2010, 6:58 pmEli Rabett says:
How many cases are decided? This might be 1 or 2 extra per year in which case never mind
March 9, 2010, 10:47 pmrubika says:
Hello,
March 10, 2010, 1:14 amIt’s very nice post
Thanks for your interest in our paper. To answer terrivus’ question about Rehnquist read from the bench only once and then was in Planned Parenthood v. Casey. We did not do a content analysis of the way journalists describe a dissent being read from the bench, but it is an interesting idea. To get to Widmerpool’s comment — Justice Ginsburg has publicly denied that there is anything significant to using or not using the word “respectfully” in her dissents. Considering the salience of these cases where justices conclude
Thanks for this important post
Rubika
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March 17, 2010, 8:52 am