SUPREME COURT WATCH
DISSENTING
FROM THE B ENCH
Jeff Bleich, Michelle Friedland, Aimee Feinberg,
and Dan Bress
T
he release of an opinion in the Supreme Court
of the United States is a moment of unusually
high drama. Decisions are not merely sent out
as written; instead, they are announced in
open court, with no advance notice to the public of either
the disposition or even the fact that the opinion will be issued that day. The morning begins like any other when
the Court is in session. A buzzer is heard, a gavel slams, all
persons present rise to attention, and the justices emerge
through curtained entries behind the bench as the marshal of the Court recites the traditional invocation calling
the Court to order. Even for those who have observed this
ritual many times, it still induces a hushed reverence. And
that is only the beginning.
If the Court has an opinion that is ready for public release,
the chief justice announces that a decision has been
reached. The justice who wrote the majority opinion then
speaks for several minutes about the case, summarizing the
facts and legal issues and explaining the basic reasoning
behind the Court’s disposition. He or she
concludes by noting those justices
who authored and joined concurring
or dissenting opinions.
30 SPRING 2008
By this point, those with a stake in the case are overwhelmed and barely able to contain themselves from racing from the courtroom to call their friends, while those
with no stake or interest may begin to glaze over. But on
a rare day the Court will issue a decision of particular national importance to all assembled, and on a rarer day still,
a justice who wrote a dissenting opinion will actually announce the dissent from the bench, generally reading
aloud from the dissent itself. In the cloistered world of the
Supreme Court, this seemingly minor gesture is the sign of
ultimate disapproval, and its impact can be powerful. To
sit in the courtroom and hear why the Court’s freshly announced decision is profoundly mistaken—in the indignant voice of a Justice Antonin Scalia or the incredulous
tone of a Justice Stephen Breyer—is to recognize that
whatever your view on the particular case, it is one
that produced great division among the justices, and one
that is likely to reverberate in American law for decades
to come.
There has been little systematic examination of dissents
from the bench, but the practice surely deserves more attention after last term. A dissent from the bench is an unusual event; most terms feature just a few, if any. But in
2006–2007, the justices read a modern record of seven dis-
sents from the bench capped on the final day of the term
by two oral dissents from Justice Breyer, one in which he
spoke emotionally for nearly twenty minutes as his colleagues looked on in silence. What are the origins of this
tradition, and how has it changed over the years? What is
the impact of a dissent from the bench, both inside and
outside the Court? And will a heretofore seldom-used
method of expressing fundamental disagreement become
de rigueur in the Roberts era?
F ROM M ODEST
B EGINNINGS
The practice of reading dissents from the bench has an
even longer historical pedigree than the reduction of an
opinion to written form. In
the Court’s earliest years the
justices did not write opinions at all; each justice instead delivered his views
orally and in seriatim, the
most junior justice speaking
first. By the early 1800s, the
modern practice of producing written opinions had
taken hold, and the justices
had also begun to issue
“opinions for the Court” representing the views of all
members of the majority (an innovation of Chief Justice
John Marshall). The purpose of reading from the bench
thus changed, as it was no longer the principal way of announcing a decision to the bar. But the practice of dissenting from the bench endured.
While the justices’ inclinations to dissent from the bench
(and even to file dissenting opinions at all) have surely
changed over the years, no one has actually kept track of
this practice. Nor have scholars analyzed this phenomenon very much. Aside from occasional newspaper reports,
sporadic mentions in the Court’s official minutes, and
more recent audio recordings, there’s no actual record of all
instances in which justices announced a dissent from the
bench. But at least some of the more memorable ones have
been preserved for posterity. For example, in the infamous
1856 case of Dred Scott v. Sanford, in which the Taney
Court held that African slaves were not citizens of the
United States and that Congress lacked the power to ban
slavery in the federal territories, it is reported that Justices
John McLean and Benjamin
Curtis read their dissents for five
hours (the modern practice is
simply to summarize a dissenting
opinion rather than read the
whole opinion word for word).
Dissenting from the bench could
also have severely unfortunate
consequences. In Girouard v.
United States, a 1946 case overruling prior precedent and allowing persons unwilling to bear
arms for the United States to still
receive citizenship, Chief Justice
Harlan F. Stone suffered a stroke
while reading his dissent in
open court. He died several
hours later.
Other dissents from the bench
were less fatal but still prone to engendering acrimony
among the justices. Justice James C. McReynolds once became so irate during a dissent from the bench that he allegedly flung his papers to the floor and declared: “The
Constitution is gone.” And in an 1895 case striking down
as unconstitutional a federal income tax, Justice John Marshall Harlan’s dissent from the bench was so acerbic that it
drew particular notice in the press. According to the New
York Sun, Justice Harlan “pounded the desk, shook his finger under the noses of the Chief Justice and Mr. Justice
Field, turned more than once angrily upon his colleagues
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31
of the majority, and expressed his dissent from their conclusions 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.”1 Added the New York
Tribune: “Old lawyers who
had practiced at that tribunal
for more than a quarter century sat aghast as sentence followed sentence.”2
Other dissents known to have
been announced aloud in
open court read like a veritable greatest-hits list of constitutional law: Justice Robert H.
Jackson dissenting in Korematsu v. United States (1944),
which upheld the internment
of Japanese Americans during
World War II; Chief Justice
Fred M. Vinson dissenting in
the “Steel Seizure Case,”
Youngstown Sheet & Tube Co. v. Sawyer (1952), which held
that President Harry S. Truman lacked the power to seize
steel mills during the Korean War; Justice Byron White
dissenting in Roe v. Wade (1973), which established a constitutional right to abortion; Justice Harry Blackmun dissenting in Bowers v. Hardwick (1986), which upheld
Georgia’s sodomy law; Justice Scalia dissenting in Morrison
v. Olson (1988), which upheld the constitutionality of the
Independent Counsel Act; Justice John Paul Stevens dissenting in Johnson v. Texas (1989), which struck down
under the First Amendment a criminal conviction for flag
burning; and Justice Breyer dissenting in United States v.
Lopez (1995), which struck down the Gun Free School
Zones Act. These, of course, are just a sampling.
32 SPRING 2008
F ROM R EHNQUIST
TO
ROBERTS
More comprehensive information is available from the
Court’s more recent terms. From October Term 1994 to
October Term 2006 (the most
recent term), there were approximately forty-two dissents
from the bench. October Term
2006 itself featured seven of
those; October Term 1997 apparently did not have a single
one. Justice Scalia was the most
repeat player, with nine. He was
quickly followed by Justices
Stevens and Ruth Bader Ginsburg, each with eight, and Justice Breyer, who dissented from
the bench seven times. Chief
Justice William Rehnquist, who
passed away before October
Term 2005, never dissented
from the bench during this period. Also on the low end were
Justices Anthony M. Kennedy
and Clarence Thomas, who each dissented from the bench
twice. Justice Kennedy’s figure is slightly augmented by the
fact that he did read aloud from several partial concurrences during this period. But Justice Thomas’s two dissents from the bench, which came in Hamdan v. Rumsfeld
(2006) (striking down military commissions at Guantánamo Bay) and Stenberg v. Carhart (2000) (holding unconstitutional Nebraska’s “partial-birth abortion” statute),
are the only ones from his tenure on the Court.
As noted earlier, the Court’s most recent term featured
seven dissents from the bench, a modern record. All seven
came from justices on the “liberal” side of the Court, six in
cases decided by a 5–4 vote.3 These dissents did not go unnoticed in the press. Linda Greenhouse of the New York
Times, for example, devoted an entire article to Justice
Ginsburg’s two oral dissents.4 According to Greenhouse,
Justice Ginsburg’s dissents from the bench were “passionate and pointed,” suggesting that October Term 2006 “will
be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.”
T HE I MPACT OF D ISSENTING
FROM THE B ENCH
Whether to dissent from the bench is ultimately the personal decision of each individual justice; there are no rules
governing when it is or is not appropriate. But when a justice does take the step of dissenting aloud, it may have effects both external and internal to the Court.
As an external matter, a dissent from the bench allows a
justice to communicate to the public the gravity of the
Court’s decision and the depth of his or her disagreement
with it. Most Americans learn about Supreme Court cases
by reading the press coverage when an opinion is released.
The Supreme Court press corps has intimate familiarity
with the Court, its procedures, and sometimes even the
justices as individuals. A dissent from the bench,
widely understood in Court circles
as the preeminent “official”
method of voicing disapproval, is an immediately recognizable signal to these reporters that a justice believes the
majority opinion is of unusual significance. Thus, newspaper articles covering a Supreme Court decision involving
a dissent from the bench will typically mention that the
practice is reserved for special cases and will also attempt
to convey the drama of the moment when an oral dissent
is delivered. When Justice Ginsburg delivered her oral remarks in last term’s Ledbetter sex-discrimination case, for
example, the Washington Post noted that reading a dissent
aloud was “usually [a] rare practice” and described Ginsburg’s words as “stinging.”5 Dissenting from the bench
thus provides the justices with an outlet for explaining to
the public their view that an important decision is particularly egregious and may prevent the Court’s actions from
getting lost in the day’s news. Of course, a harshly worded
written dissent does not always guarantee a dissent from
the bench, nor is there a dissent from the bench in every
“big” case. For example, a five-justice majority last term
held in Massachusetts v. Environmental Protection Agency
that Massachusetts had standing to sue the EPA for its failure to regulate automobile greenhouse gas emissions and
that the EPA’s bases for refusing to regulate were
unsound. The case was among the
blockbusters of the term,
likely no coincidence that Justices Stevens, Souter, Ginsburg, and Breyer together delivered all of the seven dissents from the bench in a term that most observers
characterize as one in which the Court’s conservatives
achieved a near clean sweep in major cases. Indeed, one of
A dissent from the bench can also call attention to an imthe most memorable lines from Justice Breyer’s oral disportant decision that might otherwise have flown under
sent in Parents Involved—“It is not often in the law that so
the radar and can likewise serve as the catalyst for changfew have so quickly undone so much”—could well serve as
ing the law. The most prominent example of both phea theme for several of his colleagues’ view of the entire
nomena from last term is Justice Ginsburg’s dissent in the
term. Interestingly, that line does not appear in his written
Ledbetter case. In that decision, a five-justice majority led
opinion. In all of this, it is important to recall that unlike
by Justice Samuel Alito held that Lilly Ledbetter, a female
members of Congress, the justices are not nearly as free to
employee at an Alabama Goodyear tire factory, had filed
talk about the Court’s internal dynamics. Dissenting from
her pay discrimination suit outside the statute of limitathe bench can thus give the public a small but significant
tions. By vocally expressing her sympathies for Ledbetter’s
window into what life is like inside
position, Justice Ginsburg surely
shed additional light on the case. “It is not often in the law the Marble Palace.
Her dissent from the bench, by this
point her second of the term, gener- that so few have so quickly In addition to the more external
considerations just noted, it is also
ated widespread publicity. Hearings undone so much”
possible that dissenting from the
were convened on Capitol Hill alJustice Stephen Breyer
bench can have an impact inside the
most immediately after the decision
Court as well. Just as rivals in a lawsuit occasionally need
was announced, and a bill was introduced to correct what
to vent, there may be something deeply satisfying about
some senators viewed as the Court’s misinterpretation of
publicly excoriating your colleagues when you believe they
Title VII. On the campaign trail, Senator Hillary Clinton
have made a decision that is fundamentally misguided.
specifically referenced Justice Ginsburg’s dissent from the
And it may have an impact on future cases. For a justice
bench, using Ledbetter’s story to argue that “boundaries”
who joined the majority opinion only after some hesitaand “barriers” still persisted in America.6 It is difficult to
tion, it may be unsettling to have that decision attacked
imagine that Ledbetter’s case—which involved a fairly
at the same moment it is released. In some ways, this only
technical question of statutory interpretation—would have
highlights that an announced decision is not the end of
received as much attention had Ginsburg not raised her
that issue. After the justices reach a decision during their
voice. But not every dissent has such an effect. For examconference, they are unlikely to revisit it again as a group
ple, Justice Stevens’s dissent from the bench in the 8–1
until after the decision has been written and announced.
Scott v. Harris decision—involving suspects injured in a
While the tenor of a written dissent may give some indihigh-speed police chase—did not appear to capture the atcation of a justice’s view, an oral dissent may be an importention of the press or public.
tant way to raise its profile for future related cases, when
votes might be realigned.
Dissents from the bench can also call public attention to
a prevailing trend in the Court’s decision making. It is
and Chief Justice John Roberts wrote a strident dissent attacking the majority’s standing analysis. But he did not
read his words from the bench.
34 SPRING 2008
D ISSENTING FROM THE B ENCH
IN THE R OBERTS E RA
What should we expect going forward from the justices
on the Roberts Court? If the last term is any indication,
the chief justice’s quest for unanimity has not affected the
justices’ inclination to raise their voices, at least for those
justices in dissent. On the other hand, dissenting from the
bench is thrilling in part because it is rare. If it became
common, it would lose its power. But those Court watchers looking for a flash of high drama should not be too
concerned that it will disappear altogether. The Court has
already accepted review in a number of cases involving divisive issues—military detention at Guantánamo Bay, the
right to possess firearms, and lethal injection, to name a
few. There are likely to be some dissents in these cases, and
at least a few of them won’t be issued quietly.
The authors are litigators at Munger, Tolles & Olson LLP in
San Francisco, and all previously clerked at the U.S. Supreme
Court. Jeff Bleich clerked for the late Chief Justice William
H. Rehnquist in the 1990 Term and lectures on constitutional
law at UC Berkeley School of Law. He is the 2007–2008
president of the State Bar of California. Michelle Friedland
clerked for Justice Sandra Day O’Connor in the 2001 Term
and has taught federal jurisdiction at Stanford Law School.
Aimee Feinberg clerked for Justice Stephen Breyer in the 2004
Term, and Dan Bress clerked for Justice Antonin Scalia in the
2006 Term.
The authors wish to thank Jill Duffy of the Supreme Court Library and Kathy Shurtleff of the Supreme Court Historical
Society for their help in researching this article.
1 David G. Farrelly, “Justice Harlan’s Dissent in the Pollock Case,” 24 S. Cal. L. Rev. 175, 177 (1951) (quoting Carl Swisher, American
Constitutional Development 451 (1943)).
2 Id. (quoting New York Tribune, May 21, 1895).
3 Justice Stevens dissenting in Scott v. Harris (holding that police did not use excessive force when terminating a high-speed car chase) and
Uttecht v. Brown (holding that a trial court did not err in removing a juror who had expressed uncertainty about applying the death penalty);
Justice David Souter dissenting in Federal Election Commission v. Wisconsin Right to Life (sustaining as-applied First Amendment challenge
to federal campaign finance law); Justice Ginsburg dissenting in Gonzales v. Carhart (upholding federal “partial-birth abortion” statute) and
Ledbetter v. Goodyear (holding untimely a Title VII sex-discrimination claim); Justice Breyer dissenting in Leegin Creative Leather Products,
Inc. v. PSKS, Inc. (overruling 1911 precedent and holding that vertical minimum price restraints are not per se illegal under the Sherman
Act) and Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education (holding
unconstitutional Seattle and Louisville race-based student assignment plans).
4 Linda Greenhouse, “Oral Dissents Give Ginsburg a New Voice on the Court,” New York Times, May 31, 2007.
5 Robert Barnes, “Over Ginsburg’s Dissent, Court Limits Bias Suits,” Washington Post, May 30, 2007, at A1.
6 Patrick Healy, “Campaigning as Trailblazer, by Proxy and Association,” New York Times, June 12, 2007, at A18.
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