All posts by Chris Schmidt

Teaching About the Supreme Court

Although the beginning of the Supreme Court’s October Term 2017 is still over a month away, at many law schools, the fall semester is up and running. Here at Chicago-Kent, I’m teaching a course I developed several years ago called “Supreme Court Review.” It’s a terrific course to teach. The subject matter—the past, present, and future of the Supreme Court of the United States—is utterly fascinating. One of the pleasures of the course is that it gives me an opportunity to join the students in an exploration of this mysterious, occasionally even downright strange, yet profoundly consequential institution. Another reason I enjoy teaching the course is that I structure it so that its content changes so much year to year.

The basic organization of the course is always the same. I dedicate the first few—classeswhich are weekly two-hour sessions—to looking at the history of the Supreme Court, its internal operations, and the current roster of justices. (This year, I’m using David M. O’Brien’s Storm Center: The Supreme Court in American Politics—a cornucopia of information, much of it quite entertaining, on the Court—along with a collection of articles on the Court and profiles of individual justices.) The middle part of the course looks back to the last Term of the Court, picking out a handful of the most important cases decided and dedicating an entire class to a deep dive into each decision, often supplemented with audio clips from oral argument and (once they become available in October) audio from opinion announcements. The last third of the course looks at the new Term that, by then, has begun. So in that part of the course we read lower court opinions, briefs, and, when the timing is right, listen to recently uploaded oral arguments in the cases.

It’s a fun, and often unpredictable, ride from start to finish. Last year, for example, there was a terrific collection of cases from the prior Term (including major decisions involving affirmative action, abortion, police searches, and executive power), but there was a rather less interesting upcoming docket. So alongside upcoming cases, we talked about the appointments process (we were in the middle of the Garland blockade strategy of congressional Republicans) and, following the election, the potential impact of President Trump on the Court. This year we have a quite different situation. While last Term was something of a sleeper, the upcoming Term is shaping up to be a blockbuster. So I’ve condensed the middle part of the course and given more space to the last part, when we follow cases that are currently being briefed and argued. I’m looking forward to joining the class on deep dives into the upcoming Supreme Court cases on partisan gerrymandering, Trump’s travel ban, cell phones and privacy, gay rights and religious liberty, among others.

This Day in Supreme Court History—August 24, 1814

On this day in 1814 the Supreme Court was torched by British troops. The United States was at war with Britain in what became known as the War of 1812.

At the time, the Supreme Court chamber was on the first floor of the north wing of the Capitol building. It had been located here, along with the House of Representatives, the Senate, and the Library of Congress, since 1810.The chamber, which Benjamin Henry Latrobe had designed as part of his north wing reconstruction in 1808-1810, was considered an architectural masterpiece because of its semicircular shape and its unusual ceiling of nine lobed vaults.

It was around 8 p.m. on August 24, 1814, and the sun was setting when British troops, fresh from defeating the American militia in Bladensburg, Maryland, reached Washington D.C. The town was partly deserted as many residents fled on foot or horseback upon hearing that the British were coming. The Supreme Court’s law clerks had taken with them important documents, including the Declaration of Independence. By invading Washington, the British forces were seeking to humiliate the Americans and extract revenge for the American torching of the Canadian city of York (now known as Toronto).

British Troops gathered furniture from nearby rooms to create a bonfire in the Supreme Court chamber. They put gunpowder paste on the wood around the doors and windows of the building’s main rooms before igniting them. Within minutes of the troops’ entering the Capitol, flames were shooting from the building’s windows and roof. The British went on to burn various other government buildings, including the executive mansion.

French Minister Louis Serurier watched the Capitol building burn from his temporary residence at the Octagon House. He remarked, “I have never beheld a spectacle more terrible and at the same time more magnificent.”

A severe storm the next day, along with Latrobe’s use of fireproof materials such as sheet iron, marble, sandstone, zinc and copper, prevented the Capitol building from being completely destroyed. It would not be until 1819 that the justices would return to a restored Court chamber. They would hear cases here until 1860, when the Court moved to new chambers upstairs in the Capitol. In 1935 the Court relocated to its current building, across the street from the Capitol.  

This Day in Supreme Court History—August 8, 1793

On this day in 1793, the Supreme Court sent a letter to President George Washington denying his request for the Court’s opinion regarding certain legal issues pertaining to the nation’s relations with France. This letter set a critical precedent for the newly created Court, which the justices have never abandoned: the Court will only issue opinions in cases involving legal disputes between adversarial parties; it will not issue “advisory” opinions.

In requesting legal guidance from the Court, President Washington was following a long line of Anglo-American precedent. Judges of the highest courts in England would offer advisory opinions when the monarch or the House of Lords requested they do so. In America, several state constitutions gave the governor or legislature the right to seek advisory opinions from their states’ supreme courts. Prior to the 1793 letter, Chief Justice John Jay have given Washington his opinion on various legal issues.

Thus there was nothing particularly unusual when, on July 18, 1793, Secretary of State Thomas Jefferson wrote a letter to the Supreme Court in which he explained that the President would like to get the Court’s views on pressing legal issues related to international affairs. The French were at war with Great Britain and Spain, rapidly increased the number and complexity of questions about what actions by the United States abided by its Proclamation of Neutrality. The opinion of the justices “would secure us against errors dangerous to the peace of the US. and their authority ensure the respect of all parties.” He enclosed a list of 29 questions. The first question was: “Do the treaties between the U.S. & France give to France or her citizens a right, when at war with a power with whom the U.S. are at peace, to fit out originally in & from the ports of the U.S., vessels armed for war, with or without commission?”

On July 20, four of the six justices responded that they would need more time to decide the matter. Two of the justices were out of town at the time, and the other were reluctant to decide such an important matter without the full Court. When the Court was able to convene five of its six members, the justices drafted their now famous letter. It read as follows:

Sir

We have considered the previous Question stated in a Letter written to us by your Direction, by the Secretary of State, on the 18th of last month.

The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to; especially as the Power given by the Constitution to the President of calling on the Heads of Departments for opinions, seems to have been purposely as well as expressly limited to executive Departments.

We exceedingly regret every Event that may cause Embarrassment to your administration; but we derive Consolation from the Reflection, that your Judgment will discern what is Right, and that your usual Prudence, Decision and Firmness will surmount every obstacle to the Preservation of the Rights, Peace, and Dignity of the United States. We have the Honor to be, with perfect Respect, Sir, your most obedient and most h’ble servants”

This Day in Supreme Court History—July 24, 1974

On this day in 1974, the Supreme Court decided United States v. Nixon, a ruling that played a key role in President Richard Nixon’s resignation from office.

The justices issued their decision just sixteen days after hearing oral arguments in the case. The President, they held, could not cite executive privilege as a reason for refusing to release tape recordings that had been subpoenaed in a criminal case related to the Watergate scandal.

Warren Burger, the man Nixon had appointed as Chief Justice, delivered the unanimous Opinion of the Court. (Justice William Rehnquist, who had worked in the Nixon Administration, recused himself in the case.)

“For seventeen minutes he calmly expounded what seemed at times like a patient lesson in American history and government,” wrote Anthony Lewis, the Supreme Court reporter for the New York Times. “All was measured, professional, stately. It was the law, offering us once again that reassurance of constitutional order that we require of it in this turbulent country.”

Although Burger never mentioned the impeachment proceedings against the President, the Court’s decision “adds to the feeling that the last act of Richard Nixon’s drama is at hand,” Lewis noted. “In the White House there is visibly taking hold the shattering realization that this President is going to be impeached.”

The legal events that led to this dramatic moment at the Supreme Court began on March 1, 1974, when, in the course of an investigation initiated by a Special Prosecutor, a grand jury indicted former U.S. Attorney General John Mitchell and six others, all of whom were either on the White House staff or Nixon’s reelection committee. They were charged with obstruction of justice and conspiracy to defraud the country, among other offenses. In April, the prosecutor issued a subpoena to Nixon, whom the grand jury named an unindicted co-conspirator, requesting that he produce tapes, papers, transcripts, and memoranda. Nixon’s lawyer motioned to quash the subpoena, claiming executive privilege immunized the president against such requests. The District Court denied the motion, and the President appealed the decision.

The justices worked together through several drafts to produce an opinion they could all sign on to. According to Bob Woodward and Scott Armstrong’s inside account of the Burger Court, The Brethren, Justice Potter Stewart told his law clerks that a law school professor would have given Burger’s first draft a “D”;  he and other justices had improved it to a “B.”

The heart of the Court’s decision was the rejection of Nixon’s argument that he could not be legally compelled to produce records of “confidential conversations between a President and his close advisors” because to do so “would be inconsistent with the public interest.” The judiciary lacked the authority to reviews a presidential claim of executive privilege, Nixon argued, because to do so would violate the constitutional principle of separation of powers.

The Court rejected this sweeping assertion of executive privilege, noting that separation of powers principles do not prevent the Court from routinely reviewing the acts of the other branches of the federal government. As support for this point, the Court cited Marbury v. Madison’s famous proclamation that “it is emphatically the province and duty of the judicial department to say what the law is.”

To Nixon’s argument that communications between high government officials and their advisers must be protected so that those officials and advisers won’t feel the need to “temper candor,” the Court explained that absent a need to protect military, diplomatic, or national security secrets, the duty of the courts outweighs the interest in confidentiality of Presidential communications.

Sixteen days after the Court’s ruling, Nixon resigned.

This Day in Supreme Court History—July 7, 1986

On this day in 1986, the U.S. Supreme Court rejected a student’s claim that school officials violated his First Amendment rights when they disciplined him for giving a speech filled with sexual innuendo before a school assembly.

The student, Matthew Fraser, decided to enliven his speech in support of a candidate for the student government of Bethel High School (located in Spanaway, Washington) by describing him as “firm in his pants,” “a man who takes his point and pounds it in,” and someone who will “take an issue and nail it to the wall.”

School officials suspended Fraser for three days and told him they were removing his name from a list of candidates for speaker at graduation. They based their punishment on a student handbook rule that prohibited conduct that substantially interferes with education, including “obscene” language. Fraser’s appeal to the school board was unsuccessful, but he had better fortunes in federal court. A federal district court held that the discipline infringed his First Amendment rights and enjoined the school to allow him, if elected, to speak at graduation. The Ninth Circuit Court of Appeals affirmed.

Not amused by Fraser’s creativity was Chief Justice Warren Burger, who was presiding over his final decision day at the Supreme Court (he would retire before the next term began). In his majority opinion in Bethel School District No. 403. v. Fraser, he denied Fraser’s First Amendment claim and overturned the appeals court’s ruling. The speech at issue was “lewd and obscene,” revolving around “an elaborate, graphic, and explicit sexual metaphor,” Burger wrote. Although the Court, in its decision in Tinker v. Des Moines Independent Community School District, had recognized that students retain First Amendment protections when they cross the schoolhouse gate, Burger distinguished Tinker. That case involved a “students’ right to engage in a nondisruptive, passive expression of a political viewpoint.” (Tinker involved a student wearing a black armband in protest of the Vietnam War.) This case, by contrast, involved the “use of vulgar and offensive terms in public discourse,” and the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” The First Amendment, Burger wrote, “does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.”

Justices Thurgood Marshall and John Paul Stevens dissented. In his brief dissent, Marshall noted that the school had not sufficiently demonstrated that the speech was disruptive to the school’s educational mission. Stevens argued that the school policy did not obviously prohibit Fraser’s speech and the school had not given him sufficient notice that his words would carry such harsh consequences. “A strong presumption in favor of free expression should apply whenever an issue of this kind is arguable,” Stevens concluded.

This Day in Supreme Court History—June 23, 2003

On this day in 2003, the Supreme Court decided Grutter v. Bollinger, one of the Court’s most important rulings on the constitutionality of affirmative action. In a 5-4 ruling, the Court upheld the admissions policy of the University of Michigan Law School, which used race as one factor in its evaluation of applicants.

Challenging the law school’s affirmative action policy was Barbara Grutter, a white student who claimed that her constitutional rights were violated because she had been denied admission while racial minority candidates with lower GPAs and test scores had been admitted. Grutter’s supporters hoped that the Court would use her case as an opportunity to overrule Regents of the University of California v. Bakke, the 1978 Supreme Court decision that struck down racial quotas but allowed for more flexible, “holistic” use of racial preferences for purposes of increasing diversity in higher education.  

Affirmative action opponents won a partial victory in Gratz v. Bollinger, decided on the same day as Grutter. In this case a five-justice majority of Court struck down the racial preference policy used by for undergraduate admission to the University of Michigan, which used a points-based admission system that assigned a certain number of points for racial-minority status.

But Justice O’Connor, who joined the majority striking down the undergraduate policy in Gratz, joined the four dissenters in that case (Justices Stevens, Souter, Ginsburgand Breyer) to form a majority to uphold the law school’s policy in Grutter. She reiterated Bakke’s holding that states had a “compelling interest” in creating racial diversity in their institutions of higher education and then held that the law school’s racial preference policy was “narrowly tailored” because the law school “considers race only as a plus in a particular applicant’s file and gives serious consideration to all the ways besides race that an applicant might contribute to a diverse educational environment.” The law school’s effort to ensure a “critical mass” of minority students “operates neither as a quota nor a two-track admission system.”

In his dissent, Chief Justice Rehnquist denounced the law school’s program as nothing more than “a naked effort to achieve racial balancing.” He argued that the law school policy, like the undergraduate admissions policy, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia wrote his own acerbic dissented in which he lamented that “today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation” over affirmative action.

Justice Thomas wrote a long, powerful, and personal dissent. He began by quoting the great African American abolitionist Frederick Douglass, who gave a speech in 1865 denouncing the harms caused by white “interference” with blacks. “Do nothing with us!” Douglas demanded. “Like Douglass,” Thomas wrote “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Although modified somewhat in the recent Fisher v. University of Texas decisions, Grutter remains basically intact today. Universities are permitted to use racial preferences in selecting their incoming classes, so long as they are doing so in order to advance a goal of diversity and so long as they use a flexible process of evaluation in which race is only one factor among many.

This Day in Supreme Court History—June 15, 1989

On this day in 1989, the Supreme Court handed down Michael H. v. Gerald D., a landmark case on parental rights that highlighted fissures among the justices on the nature of constitutional rights not specifically enumerated in the text of the Constitution.

The Court upheld a California law that presumed a child born to a married woman living with her husband to be a child of that marriage. The law was challenged by the child’s biological father.

The facts of the case could have been pulled from the script of a soap opera. The married couple in the case was international model, Carole Dearing, and French oil company executive, Gerald Dearing. Carole had an affair with a neighbor, Michael Hirschensohn, which resulted in the arrival of baby Victoria. Gerald was listed as Victoria’s father on her birth certificate, and he always presented her as his daughter. But Carole told Michael that he might be Victoria’s father, which a subsequent blood test confirmed. For some period of time Michael lived with Carole and Victoria. He presented Victoria as his daughter, and she called him “Daddy.”

When this living arrangement broke up, and Carole and Victoria returned to Gerald, Michael sought to be declared Victoria’s father so he could obtain visitation rights. California courts denied Michael’s efforts, and he appealed his case to the U.S. Supreme Court, claiming that California’s denial of his ability to establish a relationship with his biological daughter violated his Fourteenth Amendment due process rights.

Justice Scalia, wrote the opinion of the Court. (He was joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy; Justice Stevens wrote a separate concurring opinion.), rejected Michael’s challenge to California’s refusal to allow him to establish paternity. He argued that although California’s policy did prevent a biological father from establishing a relationship with his child, it did so in order to protect the interests of the marital relationship: “to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa.” California did not violated any due process rights by privileging a married couple’s relationship over the rights of “an adulterous natural father.” He looked to history and found no tradition of recognition of the rights of fathers who had affairs with married women. Precedent rests “upon the historic respect—indeed sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.”

In dissent, Justice Brennan (joined by Justices Marshall and Blackmun) argued that the original reasons for the presumption of paternity are outdated in a world “in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did.”  Because Michael lived with and supported Victoria, the only difference between the child’s relationship with Michael and her relationship with Gerald is “the fact of marriage”—and, as the Court had previously held, marriage should not be conclusive in these situations cases. The state’s interest in preserving family units was “minute in comparison with a father’s interest in his relationship with his child.”

This Day in Supreme Court History—June 13, 1966

On this day in 1966, the Supreme Court announced its decision in Miranda v. Arizona. In a decade filled with headline-making Supreme Court rulings, Miranda stood out. It became a favorite target of a conservative law-and-order campaign that helped get Richard Nixon elected president and transformed the politics of criminal justice. But as controversial as the ruling was at the time, Miranda soon became an unlikely popular icon, its requirement that police inform suspects of their rights (“You have the right to remain silent …”) quoted in television shows and movies until it has become part of our cultural firmament.

The case reviewed the criminal convictions of four men, each of whom had confessed to a crime. The lead defendant, Ernesto Miranda signed a written statement confessing to two crimes, a kidnapping and a rape, after two hours of police interrogation. The police had not advised Miranda of his right to have an attorney present during questioning. He was convicted and sentenced to twenty to thirty years in prison.

In a 5-4 ruling, the Court reversed Miranda’s conviction. In the process, the Court extended the Fifth Amendment’s protection against self-incrimination to anyone in police custody. (Prior to this point, this right had only applied at trial.)

Writing for the Court, Chief Justice Earl Warren dedicated much of his lengthy opinion to cataloging the abusive, and often quite brutal, interrogation tactics that had long been common in police departments and that remained prevalent in 1960s America. Such tactics, Warren wrote, were “at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”

As a remedy for this constitutional violation, Warren held that for a suspect’s statements to be used at trial, the police first had to inform the suspect of his rights and the consequences of waiving these rights. These rights included: that the suspect had the right to remain silent; that any statement the suspect made could be used as evidence against him; that the suspect has the right to have an attorney present; and that an attorney will be appointed for him if he cannot afford one. Any waiver any of these rights must be “made voluntarily, knowingly and intelligently.”

Warren defended his opinion against the dissenters’ accusations that it would undermine effective law enforcement by noting that the FBI had already implemented a practice of informing suspects and arrestees of their rights before interrogations.

Justice John Marshall Harlan read his strongly worded dissent from the bench. “His face flushed and his voice occasionally faltering with emotion,” reported the Washington Post, Harlan “denounced the decision as ‘dangerous experimentation’ at a time of a ‘high crime rate that is a matter of growing concern.’” Perhaps the most widely reported lines of dissent were those of Justice Byron White, who wrote: “In some unknown number of cases the Court’s rule will turn a killer, a rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

Although some praised the decision as an important step in protecting the rights of criminal defendants, much commentary on Miranda predictably echoed the dissenters’ critiques. The ruling “added enormously to the difficulties the Court already has imposed on police,” wrote the conservative New York Times columnist Arthur Krock. He noted that law-enforcement officials already identified the Court’s rulings a primary cause of the increase in crime with which they were dealing. “We might as well close up shop,” declared one police chief said after learning of the ruling.

Despite widespread attacks on the decision, including an effort by Congress to effectively overrule it, the ruling stood and it still stands today, its warnings probably the most recognized—and certainly the most quoted—words ever written in a Supreme Court opinion.

This Day in Supreme Court History—April 26, 1978

On this day in 1978, the Supreme Court decided First National Bank of Boston v. Bellotti, a seminal case involving corporate speech rights.

In a 5-4 ruling, the Court struck down a Massachusetts law that prohibited corporations from spending money to influence the outcome of referenda, unless the referenda issue “materially affected” them.

Justice Lewis Powell Jr. wrote the majority opinion. The Court had repeatedly upheld the speech rights of media outlets and the right of corporations to advertise, Powell noted. These First Amendment decisions were based not on corporate business interests, but on a concern for “the preservation of free and uninhibited dissemination of information and ideas.” By denying corporations the ability to spend money to advance their views on issues that cannot be “proved to affect adversely their property or business interest,” the Massachusetts law deprives the public of their views on issues of general public interest. Massachusetts failed to identify an interest that was important enough to justify the restriction of public access to ideas and information, Powell wrote. “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”

In a footnote to his opinion, Powell noted that the Court’s ruling “implies no comparable right in the quite different context of participation in a political campaign for election to public office.” The Court would later recognize the right for corporations to spend their money in political campaigns in the controversial 2010 Citizens United case.

Chief Justice Burger and Justices Blackmun, Stewart, and Stevens joined Justice Powell’s opinion.

Justice White wrote a dissent in which Justices Brennan and Marshall joined. The First Amendment does not forbid the state from interfering with “managerial decisions of this kind,” wrote Justice White. “Government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena.” Because of their wealth, White explained, corporations can “acquire an unfair advantage in the political process.” He noted that the Court’s holding invalidated a longstanding statute and brought into question similar statutes in 30 other states as well as federal law.
Justice Rehnquist filed a separate dissent in which he argued a corporation does not necessarily need the right of political expression to carry out its functions, and the state law does not violate corporations’ Fourteenth Amendment protections. “Court observers were startled by the view of Justice Rehnquist, almost universally regarded as the most conservative member of the Burger court, on an issue with such powerful ideological consequences” the New York Times reported.  

This Day in Supreme Court History—April 22, 2014

On this day in 2014 the Supreme Court announced its opinion in Schuette v. Coalition to Defend Affirmative Action.

The case involved a 2006 amendment to the Michigan constitution, approved by a statewide referendum, that prohibited “all sex- and race-based preferences” in public education, employment, and contracting. The referendum was organized in response to Grutter v. Bollinger, the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s use of affirmative action. Following passage of the amendment, an alliance of progressive interest groups—the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary—challenged the amendment in court, claiming that it violated the Equal Protection Clause of the Fourteenth Amendment.

The Court denied the challengers’ claim. Six justices agreed that Michigan’s amendment did not run afoul of the U.S. Constitution, although they divided on their reasoning. Writing the opinion of the Court, Justice Kennedy insisted that the case was not about the constitutionality of using race as a factor in determining admissions, but whether states can choose to prohibit race preferences. This issue should be determined by the voters, Kennedy insisted, and nothing in the Constitution prevented them from concluding that government use of race classifications could “perpetuate the same racism such policies were meant to alleviate.”

The case produced several concurring opinions. Justice Scalia made clear his belief that the Equal Protection Clause not only did not prevent Michigan from adopting this policy, but that it required them to do so. Justice Breyer, who unlike the other justices in the majority had been a consistent defender of the constitutionality of affirmative action, wrote his own concurrence, emphasizing that regardless of one’s view on affirmative action, this was a matter that Michigan’s voters should be allowed to decide for themselves.

Justices Sotomayor and Ginsburg dissented. (Justice Kagan had worked on this case when she was Solicitor General and recused herself.) Justice Sotomayor wrote the dissenting opinion on behalf of herself and Justice Ginsburg, and, for the first time in her five years on the Supreme Court, she chose to read her dissent from the bench. In previous postings on this blog, I analyzed in some detail Sotomayor’s first oral dissent. Most of the remainder of this post draws from from those previous posts (available in full here and here):

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

 

Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position….

According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She concluded her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Chief Justice Roberts wrote a short concurrence to take issue with Justice Sotomayor’s effort to frame the case as about the constitutionality of affirmative action rather than about deference to the decision making of Michigan’s voters. He wrote: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”