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The release of an opinion in the Supreme Courtof the United States is a moment of unusuallyhigh drama. Decisions are not merely sent outas written; instead, they are announced in

open court, with no advance notice to the public of eitherthe disposition or even the fact that the opinion will be is-sued that day. The morning begins like any other whenthe Court is in session. A buzzer is heard, a gavel slams, allpersons present rise to attention, and the justices emergethrough curtained entries behind the bench as the mar-shal of the Court recites the traditional invocation callingthe Court to order. Even for those who have observed thisritual many times, it still induces a hushed reverence. Andthat is only the beginning.

If the Court has an opinion that is ready for public release,the chief justice announces that a decision has beenreached. The justice who wrote the majority opinion thenspeaks for several minutes about the case, summarizing thefacts and legal issues and explaining the basic reasoningbehind the Court’s disposition. He or sheconcludes by noting those justiceswho authored and joined concurringor dissenting opinions.

By this point, those with a stake in the case are over-whelmed and barely able to contain themselves from rac-ing from the courtroom to call their friends, while thosewith no stake or interest may begin to glaze over. But ona rare day the Court will issue a decision of particular na-tional importance to all assembled, and on a rarer day still,a justice who wrote a dissenting opinion will actually an-nounce the dissent from the bench, generally readingaloud from the dissent itself. In the cloistered world of theSupreme Court, this seemingly minor gesture is the sign ofultimate disapproval, and its impact can be powerful. Tosit in the courtroom and hear why the Court’s freshly an-nounced decision is profoundly mistaken—in the indig-nant voice of a Justice Antonin Scalia or the increduloustone of a Justice Stephen Breyer—is to recognize thatwhatever your view on the particular case, it is one that produced great division among the justices, and onethat is likely to reverberate in American law for decades to come.

There has been little systematic examination of dissentsfrom the bench, but the practice surely deserves more at-tention after last term. A dissent from the bench is an un-usual event; most terms feature just a few, if any. But in2006–2007, the justices read a modern record of seven dis-

SUPREME COURT WATCH

DISSENTINGFROM THE BENCHJeff Bleich, Michelle Friedland, Aimee Feinberg, and Dan Bress

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31

sents from the bench capped on the final day of the termby two oral dissents from Justice Breyer, one in which hespoke emotionally for nearly twenty minutes as his col-leagues looked on in silence. What are the origins of thistradition, and how has it changed over the years? What isthe impact of a dissent from the bench, both inside andoutside the Court? And will a heretofore seldom-usedmethod of expressing fundamental disagreement becomede rigueur in the Roberts era?

FROM MODEST

BEGINNINGS

The practice of reading dis-sents from the bench has aneven longer historical pedi-gree than the reduction of anopinion to written form. Inthe Court’s earliest years thejustices did not write opin-ions at all; each justice in-stead delivered his viewsorally and in seriatim, themost junior justice speakingfirst. By the early 1800s, themodern practice of produc-ing written opinions hadtaken hold, and the justiceshad also begun to issue“opinions for the Court” representing the views of allmembers of the majority (an innovation of Chief JusticeJohn Marshall). The purpose of reading from the benchthus changed, as it was no longer the principal way of an-nouncing a decision to the bar. But the practice of dissent-ing from the bench endured.

While the justices’ inclinations to dissent from the bench(and even to file dissenting opinions at all) have surelychanged over the years, no one has actually kept track ofthis practice. Nor have scholars analyzed this phenome-non very much. Aside from occasional newspaper reports,

sporadic mentions in the Court’s official minutes, andmore recent audio recordings, there’s no actual record of allinstances in which justices announced a dissent from thebench. But at least some of the more memorable ones havebeen preserved for posterity. For example, in the infamous1856 case of Dred Scott v. Sanford, in which the TaneyCourt held that African slaves were not citizens of theUnited States and that Congress lacked the power to banslavery in the federal territories, it is reported that Justices

John McLean and BenjaminCurtis read their dissents for fivehours (the modern practice issimply to summarize a dissentingopinion rather than read thewhole opinion word for word).Dissenting from the bench couldalso have severely unfortunateconsequences. In Girouard v.United States, a 1946 case over-ruling prior precedent and allow-ing persons unwilling to beararms for the United States to still receive citizenship, Chief JusticeHarlan F. Stone suf fered a strokewhile reading his dissent in open court. He died severalhours later.

Other dissents from the benchwere less fatal but still prone to engendering acrimonyamong the justices. Justice James C. McReynolds once be-came so irate during a dissent from the bench that he al-legedly flung his papers to the floor and declared: “TheConstitution is gone.” And in an 1895 case striking downas unconstitutional a federal income tax, Justice John Mar-shall Harlan’s dissent from the bench was so acerbic that itdrew particular notice in the press. According to the NewYork Sun, Justice Harlan “pounded the desk, shook his fin-ger under the noses of the Chief Justice and Mr. JusticeField, turned more than once angrily upon his colleagues

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of the majority, and expressed his dissent from their con-clusions in a tone and language more appropriate to astump speech at a Populist barbecue than to an opinionon a question of law before theSupreme Court of the UnitedStates.”1 Added the New YorkTribune: “Old lawyers whohad practiced at that tribunalfor more than a quarter cen-tury sat aghast as sentence fol-lowed sentence.”2

Other dissents known to havebeen announced aloud inopen court read like a verita-ble greatest-hits list of consti-tutional law: Justice Robert H.Jackson dissenting in Kore-matsu v. United States (1944),which upheld the internmentof Japanese Americans duringWorld War II; Chief JusticeFred M. Vinson dissenting inthe “Steel Seizure Case,”Youngstown Sheet & Tube Co. v. Sawyer (1952), which heldthat President Harry S. Truman lacked the power to seizesteel mills during the Korean War; Justice Byron Whitedissenting in Roe v. Wade (1973), which established a con-stitutional right to abortion; Justice Harry Blackmun dis-senting in Bowers v. Hardwick (1986), which upheldGeorgia’s sodomy law; Justice Scalia dissenting in Morrisonv. Olson (1988), which upheld the constitutionality of theIndependent Counsel Act; Justice John Paul Stevens dis-senting in Johnson v. Texas (1989), which struck downunder the First Amendment a criminal conviction for flagburning; and Justice Breyer dissenting in United States v.Lopez (1995), which struck down the Gun Free SchoolZones Act. These, of course, are just a sampling.

FROM REHNQUIST TO ROBERTS

More comprehensive information is available from theCourt’s more recent terms. From October Term 1994 to

October Term 2006 (the mostrecent term), there were ap-proximately forty-two dissentsfrom the bench. October Term2006 itself featured seven ofthose; October Term 1997 ap-parently did not have a singleone. Justice Scalia was the mostrepeat player, with nine. He wasquickly followed by JusticesStevens and Ruth Bader Gins-burg, each with eight, and Jus-tice Breyer, who dissented fromthe bench seven times. ChiefJustice William Rehnquist, whopassed away before OctoberTerm 2005, never dissentedfrom the bench during this pe-riod. Also on the low end wereJustices Anthony M. Kennedy

and Clarence Thomas, who each dissented from the benchtwice. Justice Kennedy’s figure is slightly augmented by thefact that he did read aloud from several partial concur-rences during this period. But Justice Thomas’s two dis-sents from the bench, which came in Hamdan v. Rumsfeld(2006) (striking down military commissions at Guantá-namo Bay) and Stenberg v. Carhart (2000) (holding un-constitutional 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 featuredseven dissents from the bench, a modern record. All sevencame from justices on the “liberal” side of the Court, six incases decided by a 5–4 vote.3 These dissents did not go un-noticed in the press. Linda Greenhouse of the New York

Times, for example, devoted an entire article to JusticeGinsburg’s two oral dissents.4 According to Greenhouse,Justice Ginsburg’s dissents from the bench were “passion-ate and pointed,” suggesting that October Term 2006 “willbe remembered as the time when Justice Ruth Bader Gins-burg found her voice, and used it.”

THE IMPACT OF DISSENTING

FROM THE BENCH

Whether to dissent from the bench is ultimately the per-sonal decision of each individual justice; there are no rulesgoverning when it is or is not appropriate. But when a jus-tice does take the step of dissenting aloud, it may have ef-fects both external and internal to the Court.

As an external matter, a dissent from the bench allows ajustice to communicate to the public the gravity of theCourt’s decision and the depth of his or her disagreementwith it. Most Americans learn about Supreme Court casesby reading the press coverage when an opinion is released.The Supreme Court press corps has intimate familiaritywith the Court, its procedures, and sometimes even thejustices as individuals. A dissent from the bench,widely understood in Court circles as the preeminent “official”

method of voicing disapproval, is an immediately recog-nizable signal to these reporters that a justice believes themajority opinion is of unusual significance. Thus, news -paper articles covering a Supreme Court decision involvinga dissent from the bench will typically mention that thepractice is reserved for special cases and will also attemptto convey the drama of the moment when an oral dissentis delivered. When Justice Ginsburg delivered her oral re-marks in last term’s Ledbetter sex-discrimination case, forexample, the Washington Post noted that reading a dissentaloud was “usually [a] rare practice” and described Gins-burg’s words as “stinging.”5 Dissenting from the benchthus provides the justices with an outlet for explaining tothe public their view that an important decision is partic-ularly egregious and may prevent the Court’s actions fromgetting lost in the day’s news. Of course, a harshly wordedwritten dissent does not always guarantee a dissent fromthe bench, nor is there a dissent from the bench in every“big” case. For example, a five-justice majority last termheld in Massachusetts v. Environmental Protection Agencythat Massachusetts had standing to sue the EPA for its fail-ure to regulate automobile greenhouse gas emissions and

that the EPA’s bases for refusing to regulate wereunsound. The case was among the

blockbusters of the term,

34 SPRING 2008

and Chief Justice John Roberts wrote a strident dissent at-tacking the majority’s standing analysis. But he did notread his words from the bench.

A dissent from the bench can also call attention to an im-portant decision that might other wise have flown underthe radar and can likewise serve as the catalyst for chang-ing the law. The most prominent example of both phe-nomena from last term is Justice Ginsburg’s dissent in theLedbetter case. In that decision, a five-justice majority ledby Justice Samuel Alito held that Lilly Ledbetter, a femaleemployee at an Alabama Goodyear tire factory, had filedher pay discrimination suit outside the statute of limita-tions. By vocally expressing her sympathies for Ledbetter’sposition, Justice Ginsburg surelyshed additional light on the case.Her dissent from the bench, by thispoint her second of the term, gener-ated widespread publicity. Hearingswere convened on Capitol Hill al-most immediately after the decisionwas announced, and a bill was introduced to correct whatsome senators viewed as the Court’s misinterpretation ofTitle VII. On the campaign trail, Senator Hillary Clintonspecifically referenced Justice Ginsburg’s dissent from thebench, using Ledbetter’s story to argue that “boundaries”and “barriers” still persisted in America.6 It is difficult toimagine that Ledbetter’s case—which involved a fairlytechnical question of statutory interpretation—would havereceived as much attention had Ginsburg not raised hervoice. But not every dissent has such an effect. For exam-ple, Justice Stevens’s dissent from the bench in the 8–1Scott v. Harris decision—involving suspects injured in ahigh-speed police chase—did not appear to capture the at-tention of the press or public.

Dissents from the bench can also call public attention toa prevailing trend in the Court’s decision making. It is

likely no coincidence that Justices Stevens, Souter, Gins-burg, and Breyer together delivered all of the seven dis-sents from the bench in a term that most observerscharacterize as one in which the Court’s conservativesachieved a near clean sweep in major cases. Indeed, one ofthe most memorable lines from Justice Breyer’s oral dis-sent in Parents Involved—“It is not often in the law that sofew have so quickly undone so much”—could well serve asa theme for several of his colleagues’ view of the entireterm. Interestingly, that line does not appear in his writtenopinion. In all of this, it is important to recall that unlikemembers of Congress, the justices are not nearly as free totalk about the Court’s internal dynamics. Dissenting fromthe bench can thus give the public a small but significant

window into what life is like insidethe Marble Palace.

In addition to the more external considerations just noted, it is alsopossible that dissenting from thebench can have an impact inside the

Court as well. Just as rivals in a lawsuit occasionally needto vent, there may be something deeply satisfying aboutpublicly excoriating your colleagues when you believe theyhave made a decision that is fundamentally misguided.And it may have an impact on future cases. For a justicewho joined the majority opinion only after some hesita-tion, it may be unsettling to have that decision attackedat the same moment it is released. In some ways, this onlyhighlights that an announced decision is not the end ofthat issue. After the justices reach a decision during theirconference, they are unlikely to revisit it again as a groupuntil after the decision has been written and announced.While the tenor of a written dissent may give some indi-cation of a justice’s view, an oral dissent may be an impor-tant way to raise its profile for future related cases, whenvotes might be realigned.

“It is not often in the lawthat so few have so quicklyundone so much”

Justice Stephen Breyer

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35

DISSENTING FROM THE BENCH

IN THE ROBERTS ERA

What should we expect going forward from the justiceson the Roberts Court? If the last term is any indication,the chief justice’s quest for unanimity has not affected thejustices’ inclination to raise their voices, at least for thosejustices in dissent. On the other hand, dissenting from thebench is thrilling in part because it is rare. If it becamecommon, it would lose its power. But those Court watch-ers looking for a flash of high drama should not be tooconcerned that it will disappear altogether. The Court hasalready accepted review in a number of cases involving di-visive issues—military detention at Guantánamo Bay, theright to possess firearms, and lethal injection, to name afew. There are likely to be some dissents in these cases, andat least a few of them won’t be issued quietly.

The authors are litigators at Munger, Tolles & Olson LLP inSan Francisco, and all previously clerked at the U.S. SupremeCourt. Jeff Bleich clerked for the late Chief Justice WilliamH. Rehnquist in the 1990 Term and lectures on constitutionallaw at UC Berkeley School of Law. He is the 2007–2008president of the State Bar of California. Michelle Friedlandclerked for Justice Sandra Day O’Connor in the 2001 Termand has taught federal jurisdiction at Stanford Law School.Aimee Feinberg clerked for Justice Stephen Breyer in the 2004Term, and Dan Bress clerked for Justice Antonin Scalia in the2006 Term.

The authors wish to thank Jill Duffy of the Supreme Court Li-brary and Kathy Shurtleff of the Supreme Court HistoricalSociety 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.