Justices have a lot to say, but all is quiet in the Supreme Court
Image from Shutterstock.com.
In a normal June, the U.S. Supreme Court issues the last of the term’s opinions, many of which are in its most contentious and divided cases.
In the courtroom, with its steep ceiling, marble columns, red velvet curtains, and mahogany bench, the author of the majority opinion usually delivers a crisp summary, while several times each term a justice on the losing end of a case feels so strongly that he or she delivers a passionate dissent from the bench.
It makes for high drama, and Justice Ruth Bader Ginsburg once referred to people coming to the courtroom to “watch the show.”
But the show has not gone on during the time of quarantine. Since March, because of the coronavirus pandemic, the Supreme Court building has been closed to the public, the courtroom has sat empty, and opinions have been released on the web.
The justices drew plaudits in May for releasing live audio of the 10 telephone arguments they heard after two regular courtroom sittings had been postponed. But the court has not seen fit to come up with a quarantine version of live courtroom summaries.
“It is indeed unfortunate not to have opinion announcements, and in particular the occasional dissent read from the bench,” says Paul M. Smith, a professor from practice at Georgetown University Law Center and a vice president of the Washington, D.C.-based Campaign Legal Center.
Smith has argued frequently before the court on a range of issues, including LGBTQ rights. He had successfully argued Lawrence v. Texas, overturning gay sodomy laws. He was in the courtroom when that opinion came down in 2003 and again in 2015 when the justices announced Obergefell v. Hodges, which recognized gay marriage. Advocates for LGBTQ rights had gathered in the courtroom for both of those and wiped tears from their eyes as Justice Anthony M. Kennedy used soaring language to summarize his opinions for the court.
Smith says that if the court had been able to follow its usual tradition when it issued its June 15 decision in Bostock v. Clayton County, Georgia, which ruled federal employment discrimination law protected gay and transgender workers, Justice Samuel A. Alito Jr. would have likely read from his lengthy dissent.
“That would have followed in the tradition of dissents read from the bench in all the prior major gay rights cases from Romer to Lawrence to Windsor and Obergefell,” Smith says.
Justice Antonin Scalia delivered passionate—some might say angry—dissents from the bench in three of those LGBTQ rights cases—Romer v. Evans, Lawrence, and United States v. Windsor. In Obergefell, Chief Justice John G. Roberts Jr. delivered his first and so far only dissent from the bench. (Scalia joined that dissent and issued one of his own, but he didn’t read from it on the bench.)
Neal K. Katyal, a former acting U.S. solicitor general under President Barack Obama and now a Hogan Lovells partner who argues often before the high court, says he, too, feels something missing from the cold delivery of written opinions on the court’s website.
“I think we do lose something,” says Katyal, a frequent spectator in the court’s bar section even when he isn’t arguing cases. “I think the court is doing the best it can under the circumstances, but the tradition of dissents from the bench is an important one, and so there is a loss here.”
He adds that “oral dissents from the bench often underscore just how strongly a justice feels, and to hear their emotion and analysis firsthand cannot be beat. At the same time, I recognize that only a select few even get to see that under non-COVID conditions.”
Sending a signal
It is the written opinion, of course, that has legal and precedential effect, not the summaries delivered from the bench by the authors. Some justices put a lot of work into crafting their opinion announcements, while to others, it’s a chore they don’t seem to relish.
It’s true that only a few hundred people in the courtroom get to hear opinion announcements or dissents live. The announcements are recorded, but the court does not post them later the same week the way it does with recordings of oral arguments. Court buffs must wait for months after the end of a particular term, when Oyez.org puts the recordings up on its website and provides unofficial transcripts.
But some journalists and legal analysts listen carefully to the summaries and oral dissents, which can crystallize key points.
“We’re missing out by not being able to hear from the justices,” says Timothy R. Johnson, a professor of political science and law at the University of Minnesota who has studied oral dissents. Bench announcements—whether it’s the majority opinion, an oral dissent or the occasional concurrence summarized from the bench—“are signals to the elected branches and to the larger public,” he says.
A classic example is Justice Ginsburg’s 2007 dissent in Ledbetter v. Goodyear Tire & Rubber Co., in which she read from the bench to call on Congress to reverse the majority’s narrow interpretation of the timeliness of claims under federal employment discrimination law. Congress passed the Lilly Ledbetter Fair Pay Act less than two years later.
“A dissent presented orally … garners immediate attention,” Ginsburg said in a 2007 lecture. “It signals that, in the dissenters’ view, the court’s opinion is not just wrong, but grievously misguided.”
Ginsburg has dissented from the bench 21 times since joining the court in 1993, according to records kept by William Blake, an assistant professor of political science at the University of Maryland, Baltimore County. Justice Stephen G. Breyer leads the pack on the current court, with 22 oral dissents since he joined the bench in 1994.
Justice Sonia Sotomayor has done so four times, followed by Alito and Justice Elena Kagan, who have each done so three times. Justice Clarence Thomas has dissented orally twice since joining the court in 1991.
In 2005, in response to the court’s ruling in Hamdan v. Rumsfeld granting some relief to prisoners at Guantanamo Bay, Thomas said, “In 15 terms on this court, I have never read a dissent from the bench, but today’s decision requires that I do so.” But Thomas apparently forgot that he had also orally dissented in 2000 in Stenberg v. Carhart, an abortion case.
Roberts’ dissent from the bench in Obergefell was his only one. The court’s newest members, Justices Neil M. Gorsuch and Brett M. Kavanaugh, have not yet delivered any oral dissents.
“This term has a bunch of potential blockbuster decisions” that would have made for helpful summaries of majority opinions and attention-getting oral dissents, Blake says. “There is a lot of insight you can get from the opinion summaries, which sometimes deviate from the text of the opinions themselves, and from the oral dissents.”
Listening for tone
Among the issues involved in the cases that remain outstanding are abortion rights, church and state, the Electoral College, and access by Congress and prosecutors to President Donald J. Trump’s personal financial records. The court’s online release of opinions, which has had a couple of minor glitches, may extend into July.
Amanda Shanor, an assistant professor of legal studies and business ethics at the Wharton School of the University of Pennsylvania, has frequently attended arguments and opinion announcements since she was in Washington a few years ago working for the American Civil Liberties Union and doing a fellowship at Georgetown law Center.
“I would really love to hear this term’s announcements, both the summaries of the majority and any dissents,” says Shanor, who is also a visiting professor at Penn’s law school. “Is there anything different from the written opinions? What is the tone? For people who litigate before the court, this is important to the larger arc of American law.”
Jordan Lorence, a senior counsel with the Alliance Defending Freedom, is frequently in the court’s bar section at this time of year to hear firsthand decisions of interest to his Christian-based legal organization.
“When the chief justice announces that a justice has the decision in an important case, the suspense of listening to hear which side won is soon overshadowed by the growing sense that you are witnessing history unfold before your eyes,” Lorence says. “A justice reading a passionate dissent from the bench accentuates that moment.”
The online release of opinions has been “somewhat anticlimactic,” he says. “I hope the Supreme Court can safely open its doors to the public soon.”
Updated at 10:34 a.m. to correct the spelling of the Lilly Ledbetter Fair Pay Act.
