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Pandemic means a silent June at the Supreme Court

PTI | Washington DC | Updated: 04-06-2020 11:05 IST | Created: 04-06-2020 10:40 IST
Pandemic means a silent June at the Supreme Court
File Photo. Image Credit: Pixabay

It's the time of the year when Supreme Court justices can get testy. They might have to find a new way to show it. The court's most fought-over decisions in its most consequential cases often come in June, with dueling majority and dissenting opinions. But when a justice is truly steamed to be on a decision's losing side, the strongest form of protest is reading a summary of the dissent aloud in court.

Dissenting justices exercise what a pair of scholars call the "nuclear option" just a handful of times a year, but when they do, they signal that behind the scenes, there's frustration and even anger. The coronavirus pandemic has kept the justices from their courtroom since March and forced them to change their ways in many respects. Now, in their season of weighty decisions, instead of the drama that can accompany the announcement of a majority decision and its biting dissent, the court's opinions are being posted online without an opportunity for the justices to be heard.

University of Maryland, Baltimore County political science professor William Blake, who co-authored the article calling oral dissents the nuclear option, says a June without them would be a "missed opportunity." They are "a chance to see the justices as exhibiting emotions," not just the logic of their opinions, he said. Justice Ruth Bader Ginsburg has said that an oral dissent "garners immediate attention." "It signals that, in the dissenters' view, the court's opinion is not just wrong, but grievously misguided," she has said.

The act of reading can also be a signal to Congress. In a 2007 dissent Ginsburg read from the bench, she called on lawmakers to overturn her colleagues' decision in a case about equal pay for women. Congress did, passing the Lilly Ledbetter Fair Pay Act. Ginsburg's oral dissent underscored her belief that urgent action was needed, even if it wasn't the only reason lawmakers acted. University of Minnesota professor Timothy Johnson, who has written about oral dissents, says justices also reach the public through them. "If you can have a vociferous enough dissent from the bench you're going to get the nightly news to talk about it," he said.

The court, which heard arguments in 10 cases by phone last month, hasn't said what would happen this year if a justice wants to note that they would have read a dissent aloud or if there's a way they might still do so. But there are several cases remaining to be decided where dissent from the bench might have happened in normal times. Decisions that divide the court 5-4 are more likely to generate the passion that prompts a dissenting justice to speak up, research shows. This year, unresolved cases about gay and transgender rights, President Donald Trump's decision to wind down the Deferred Action for Childhood Arrivals immigration program and restrictions on abortion in Louisiana might have produced dissents read aloud.

Dissents from the bench in contentious cases go back to the 1940s. In 1973, Justice Byron White read aloud a dissent in Roe v. Wade, the abortion rights case. A 1978 case invalidating a University of California affirmative action program resulted in four concurring and dissenting statements from the bench. And in 2006, justices Antonin Scalia and Clarence Thomas read dissents when the court rejected a Bush administration plan to try Guantanamo Bay, Cuba, detainees before military commissions.


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