Dissenting from the Bench: The Role of Oral Dissents at the Supreme Court in Inciting Action

There is no story more formally structured than a legal narrative; there is an audience, narrators, characters, a plot, rules about who can say what when — and, typically, wide room for interpretation. Jerome Bruner writes that, like all tales, a legal narrative reflects Kenneth Burke’s dramatistic Pentad: agent, action, goal, setting and means — but there is some disagreement between the five elements, creating trouble. In fiction, of course, that trouble creates the plot; in everyday life, trouble is grounds for a story recounted later, to friends or family, sometimes again and again. But trouble is a different thing altogether when it is created in a legal setting. “It is the conversion of private Trouble (in Burke’s sense) into public plight that makes well-wrought narrative so powerful, so comforting, so dangerous, so culturally essential” (Bruner 2002:35). Fortunately for lawyers, the trouble created for legal narratives is inherently adversarial; in almost every case, both sides make different claims, and it is up to the audience — sometimes a jury, other times one or more judges — to decide how the story ends.

In the United States, some legal disputes are appealed to higher bodies until they reach the Supreme Court. For the nine justices who compose the highest judiciary in the nation, the legal narrative ends with them and they choose how to resolve the trouble created between agents, action, goal, setting and means. Unlike criminal courts, which focus on the conviction of law-breakers, the Supreme Court mostly deals with issues of constitutionality, ruling on the legality of the law itself. Interestingly, this does not change the basic elements of the legal proceedings. Facts of the case at hand are presented; each side presents their case through argument and testimony; the audience considers the case; and a decision is made. Here, there is a tangible difference between criminal courts, where decisions affect only the accused party, and the Supreme Court, whose decisions, when more widely applied beyond the singular case, uphold or strike down laws both large and small. And so ends the legal narrative at hand — at least until a similar case makes the court consider the issue again. It is because of this non-ending, where the court may reconsider and overturn itself in the future, that judges, especially those on the Supreme Court, author dissenting opinions when they are in the minority ruling on a case. Typically, dissents rebut the majority opinion and provide a different legal rationale for wanting a different ruling. Supreme Court justices in the last half century have made it a habit to author dissenting opinions when in the minority, meaning that a massive number of dissents have been authored because there is one for almost every non-unanimous decision — 3,683 during the terms between 1969 and 2007 (Blake and Hacker 2010:6). In a small number of cases, however, the justices go a step further and read their dissent from the bench — the oral dissent. In the same period, Blake and Hacker found 116 dissents had been read from the bench — 3.1 percent. The reasons why Supreme Court justices read dissents from the bench are varied and controversial — and the subject of the rest of this paper — but one thing is clear: “Justices issue them when they feel strongly about the case at hand” (Duffy and Lambert 2010:21).

The relation between writing dissents and reading dissents is fluid but palpable. There is certainly interplay between the two, which often manifests itself as performance. “‘Text’ (the detachable, de-contextualized stretch of discourse) and ‘performance’ (the act of assembling and mobilizing discursive elements) are two sides of one coin, inseparable and mutually constitutive” (Barber 2007:79). At the Supreme Court, that performance is essentially limited to dissenting from the bench. While performance is an undeniable aspect of the judiciary, that performance is in many ways restricted by both the customs of court behavior and justices’ personal inclinations to perform publicly. Long-term data show no overarching trend between authoring and reading dissents among the justices as a group. Some justices authored many dissents; for example, William J. Brennan, Jr., who served on the court from 1956 to 1990, authored 404 dissents, second in the 1969-2007 period only to John Paul Stevens, who in that period authored 597. Brennan viewed dissents as “an important means of laying the foundation for the legal breakthroughs” (Price and Murdoch 2001:246). Brennan hoped his dissents would be used later, sometimes decades later, for another legal challenge. Despite this fervent belief in the power of the dissent, however, Brennan only ever read a single dissent from the bench, in the controversial 1978 case Regents of the University of California v. Bakke — in which all four dissenting justices objected to the 5-4 decision orally. [Brennan did once read a dissent for William O. Douglas, as Douglas was absent from court the day it was announced. Brennan had joined the written dissent. (Duffy and Lambert 2010:24)] Other justices authored relatively few dissents and read from the bench even fewer. John Marshall Harlan authored just 25 dissents in his 15 terms on the court, and read none of them (Blake and Hacker 2010:6). Further, some justices read a much higher percentage of their dissents from the bench than average; through the 2007 term, the latest for which data was available, Ruther Bader Ginsburg held the highest ratio, 10.6 percent (ibid). Beyond the irregularities regarding oral dissents, even more damaging to any attempts to create a solid understanding of the practice is the lack of evidence regarding the motives behind particular cases. Therefore, discussions of possible motivations are speculative and overly generalized, and as such legal scholars, anthropologists, political scientists and others who have studied the oral dissent often disagree about the causes and effects of the practice. Nevertheless, the role of the oral dissent is undeniably powerful, and as such deserves what limited considerations can be had.

All of the proposed explanations of oral dissents place the justices within the legal narrative expounded upon by Bruner. Because the court is closed to television and radio, oral dissents are only ever witnessed by those actually present for the announcement — other justices, the press, various legal scholars, a handful of members of the public and sometimes interested parties of the case. Since the mid-twentieth century, the audio of most proceedings are recorded; however, the audio is typically not released for some time, after a case’s media lifetime is gone. Most of the court’s business is targeted at a speech community that frequents the legal hemisphere and stays up-to-date on proceedings. “Because a speech community is constructed around the knowledge of communicative practices as well as their implementation, it is fundamental in understanding identity and representation of ideology” (Morgan 2000:36). As such, the Supreme Court has largely avoided adapting to modernity and technology, which as Morgan argues has dropped many of the boundaries that previously separated speech communities.

However, there is evidence that justices are taking into consideration the power of the oral dissent to affect change outside the legal sphere, and although the accessibility is still restricted some justices have altered the style with which oral dissents are presented so as to make them more accessible outside the legal sphere — sort of forcibly reaching out from the legal speech community to the public at large. One notable instance of this shift is documented by Lani Guinier, who discusses at length the oral dissent of Steven Breyer in the 2007 5-4 decision in Parents Involved in Community Schools v. Seattle School District No. 1. The case revolved around racial discrimination in schools. After John Roberts, the chief justice, read the majority decision, Breyer presented his dissent, “bristling with barely concealed anger but tempered by the circumspection of the law professor he once was” (Guinier 2008:8). Breyer’s 21-minute-long oral dissent was “an unusual moment of high drama” (ibid:9) and was notable among dissents for departing severely from the written dissent, including one of the most withering charges ever presented in at the Supreme Court: “It is not often in the law that so few have so quickly changed so much.” Breyer’s dissent was about as radical as the Supreme Court will suffer; a general desire for the judiciary to appear as an evenly-tempered group keeps judges from making overt displays of emotion. Nevertheless, in this instance Breyer clearly reached outside the legal speech community.

Justice Breyer’s passionate exposition hinted at a new genre of judicial speech. He began by looking straight at the three prominent black civil rights lawyers, silently noting their presence as he delivered his dissent. He surveyed the section cordoned off for members of the Supreme Court Bar. He continued by getting the attention of the reporters then seated in the courtroom and through their megaphone reached out to the college-educated people who may not read the official Supreme Court Reports but do listen to Nina Totenberg on the radio or read Linda Greenhouse in the New York Times. Justice Breyer’s words quickly reverberated throughout the blogosphere, inviting other non-judicial dissenters to speak up in more traditional media. (Guinier 2008:10)

In this case, Breyer was attempting to impart a message to the civil rights lawyers in the room and the activists who would hear of his dissent through the media. Guinier even went so far as to call it a new genre of judicial speech, implying the act was so strikingly different from previous forms of judicial speech as to warrant its own genre, its own expectations and rules of engagement. Bakhtin argues that a speech genre is a relatively stable type of utterance, a fairly fluid term he uses to refer to a complete thought, sentence or work. “These utterances reflect the specific conditions and goals of each such area not only through their content (thematic) and linguistic style, that is, the selection of the lexical, phraseological, and grammatical resources of the language, but above all through their compositional structure” (Bakhtin 1986:60). Essentially, theme, style and structure are what link an utterance to any particular genre — in this case, a legal one.

Of course, no utterance can be an utterance without an audience. The addressee is of “immense significance” (ibid:98). Sometimes the addressee is obvious because the dissent clearly calls on a particular group for action. In her dissent from the bench in the 2007 case Ledbetter v. Goodyear Tire and Rubber Company, an equal pay and sex discrimination case, Ruth Bader Ginsburg actively called upon Congress to change the narrowly interpreted law that led to the 5-member conservative majority’s “parsimonious reading.” “Justice Ginsburg’s oral dissent in Ledbetter not only spoke directly to women like Lilly Ledbetter; it gave them a public platform that helped transform Ledbetter into a committed activist. Justice Ginsburg also spoke to Congress, urging them to enact legislation guaranteeing equal pay for equal work” (Guinier 2008:136). After Ginsburg’s dissent from the bench, Congress eventually passed a bill in 2009 that makes it easier for equal-pay lawsuits to be brought against companies — effectively reversing the court’s decision. While the new law did not help Ledbetter’s particular case, it was a long-term strategy that led to an unusually swift change in the law intended to help women such as Ledbetter in the future. “Justices will read opinions from the bench when they care a good deal about the issue and when they want to change the policy set by the majority. That is, they use their dissents to signal litigants and other actors … that the decision is a bad one and someone must act to change it” (John, Black and Ringsmuth 2009:1581). For Ginsburg in Ledbetter, that signal was aimed at Congress; in the instance of Breyer’s oral dissent in Parents v. Seattle, the audience was very clearly extending beyond those present in the courtroom through both the media and activists who would subsequently go about changing the law outside the judiciary. Guinier argues that Breyer was reaching beyond the legal community to a non-professional audience. “Although few non-legal actors actually heard Justice Breyer’s cri de coeur, it represented a gestational move in the direction of greater democratic accountability” (Guinier 2008:12). Breyer’s dissent differs from Ginsburg’s in that immediate legislative action could not reverse the court’s decision. As such, Breyer instead focused on attempting to inspire the non-legal public, a task that would have been quite difficult within the previous, more restrictive legal genre employed by the Supreme Court. Without accessibility, the justice could advocate practically any course of action without inciting any real sympathy among those outside the court. In this instance, the oral dissent is closer to slam poetry or feminist expression than the more starchy, less inviting dissents of the past because it entextualizes conversations about constitutionality into a more readily accessible genre which can be used to inspire the public at large.

Essential to extending the relevant public and therefore the effectiveness of any such legal advocacy are those involved with the case at hand — especially when those involved are everyday, non-legal actors who have been suddenly thrust into the sphere of legal activism. One primary effect of reading a dissent from the bench is attracting the attention of outside actors. “Indeed, Justices may wish to comment on a lower court’s decision or to relay information to litigants regarding strategies for getting similar cases accepted in the future” (Johnson, Black and Ringsmuth 2009:1568). Guinier cites Pat Todd, an educational administrator in Louisville, who took Breyer’s dissent to heart and, in the face of legal defeat, instead began examining ways to operate within the framework provided by the majority. Perhaps most key to her mission was the propagation of Breyer’s dissent; Todd carried it to meetings and would read parts aloud to help provide focus for her efforts and the efforts of others like her. “Their goal was to elaborate ideas and practices of racial integration in ways that may eventually realign our constitutional law with the prevailing view of constitutional culture” (Guinier 2008:13). The whole process, from oral dissent to public inspiration (or, as Michael Warner might term it, a poetic world making), Guinier terms demosprudence. As juxtaposed with jurisprudence, demosprudence does not focus on logic and legal reasoning; instead, demosprudence works to bring together democratic actors to effect change. Demosprudential dissent, therefore, works to create dialogue between the parties in a democracy.

Oral dissents should be considered in the wider context of ongoing judicial discussions, which because of the long-term nature of judicial work are primarily conducted through formal and official means such as rulings and dissents. “The addition of the practice of dissent gives judges access to the conversation that produced the particular reasons for a judgment. … These opinions enable the Justices and other judges to participate in an intertemporal conversation that may be a defining feature of the judiciary” (Stack 1996:2257). Theoretically, justices are taking power as legal actors by inserting themselves into the long-term judicial conversation. To do so, however, the have to take a position on the topic at hand, a “necessary part of gaining power for legal actors” (Schiefflin, Woolard, and Kroskrity 1998:158). That power is a salient aspect of the court’s public image, which is largely based on the appearance of some level of judicial neutrality. The court system, and most especially the Supreme Court, often works to support its image of a storied institution beyond the partisan antics of the legislative and executive branches. Some legal scholars have argued that dissents make no sense in that regard; presenting a legal opinion with less than unanimity could theoretically weaken the opinion and even the judicial institution itself. “The practice of dissent … cannot be justified on the basis of an appeal to the ideal of the rule of law” (Stack 1996:2235). Obviously, a full embrace of the iron rule of law is not in keeping with most judicial philosophies (with the notable exception of orginalism, the interpretational method of choice for Clarence Thomas which essentially seeks to realize constitutional law as the original framers intended) because the law is by its very nature an interpretive subject. In that environment, the dissent, especially those dissents manifested orally, serve to help dispel the image of total secrecy while at the same time revealing some of the closed-doors deliberation process that so eludes the public understanding of the judicial process.  “The practice of dissent shows that the formation of the Court’s judgment involves not merely a principled extension of its previous decisions, but an ‘argumentative interchange’ among its current members” (ibid:2257).

The reasons motivating Supreme Court justices to dissent from the bench are clearly a variegated hodgepodge of sometimes contradictory incentives. Nevertheless, the relative rarity of oral dissent lends the practice a certain level of prestige — as the dissented intended. “It is an extraordinary event when a justice not only writes in dissent, but purposefully draws attention to that dissent by reading it from the bench” (Blake and Hacker 2010:2). The long-term strategy of oral dissents reflects the highly considerate stratagem of the judiciary. Within the world of politics and governance, the topic of concern shifts rapidly, wildly and unpredictably, especially considering the recent advancements in media that have made the government’s goings-on more accessible to Americans. The dichotomy between the enduring judicial conversation and the frenzied political atmosphere has helped make the oral dissent a powerful tool for Supreme Court justices in the minority. “Oral texts are the outcome of a concerted effort to fix words and make them outlast the here-and-now” (Barber 2007:67). As Bruner notes, studying narrative in a legal context provides a method of gaining power over the law by deftly navigating through the tradition that so firmly defines process. When a justice reads a dissent orally, therefore, he or she recognizes the expectations of the Supreme Court and works within that framework to effect the change they wish, either through external actors such as Congress or activists, or through eventual jurisprudential reversal.

Bibliography

Bakhtin, M.M. (1986). The Problem of Speech Genres. In Speech Genres and Other Late Essays. Vern W. McGee, trans. Austin: University of Texas Press.

Barber, Karin. (2007). The Anthropology of Texts, Person and Publics. Cambridge: Cambridge University Press.

Blake, William D., and Hacker, Hans J. (2010). “The Brooding Spirit of the Law”: Supreme Court Justices Reading Dissents from the Bench. The Justice System Journal. 31:1, 1-25.

Bruner, Jerome. (2002). Making Stories: Law, Literature, Life. New York: Farrar, Strauss and Giroux.

Duffy, Jill, and Lambert, Elizabeth. (2010). Dissents from the Bench: A Compilation of Oral Dissents by U.S. Supreme Court Justices. Law Library Journal, 102:1, 7-37.

Guinier, Lani. (2008). The Supreme Court 2007 Term — Forward: Demosprudence Through Dissent. The Harvard Law Review. 122:5, 7-138.

Johnson, Timothy R., Black, Ryan C., and Ringsmuth, Eve M. (2009). Hear Me Roar: What Provokes Supreme Court Justices to Dissent from the Bench? Minnesota Law Review. 56,1560-1581.

Morgan, Marcyliena. (2000). Community. Journal of Linguistic Anthropology. 9, 36-38.

Murdoch, Joyce, and Price, Deb. (2001). Courting Justice: Gay Men and Lesbians v. the Supreme Court. Basic Books: New York.

Schiefflin, Bambi B., Woolard, Kathryn A., and Kroskrity, Paul V. (ed.). (1998). Language Ideologies: Practice and Theory. Oxford University Press: New York.

Stack, Kevin M. (1996). The Practice of Dissent in the Supreme Court. The Yale Law Journal. 105:8, 2235-2259.

Warner, Michael. (2002). Publics and Counterpublics. Public Culture. 14, 49-90.

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