All posts by Chris Schmidt

OT 2013

A Look Back—Justice Breyer’s Oral Dissent in McCutcheon

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In previous posts, I discussed last Term’s oral dissents by Justices Sotomayor (Schuette) and Ginsburg (Hobby Lobby)—all now available on Oyez. I now turn to the other major oral dissent of the Term: Justice Breyer’s in the campaign finance case, McCutcheon v. FEC.

Justice Breyer’s oral dissents are particularly interesting listening, because they put on display a side of the justice we don’t often see. For anyone who has struggled to follow his meandering, professorial hypotheticals during oral argument, or anyone who has nodded off while listening to one of his public lectures, it is refreshing to hear the more direct and passionate Justice Breyer who comes through in his oral dissents. We saw this in his widely noted oral dissent in Parents Involved, the 2007 decision striking down the use of race in public school pupil assignment, and we saw this again last term in his McCutcheon bench dissent. In his ability to connect with an audience, he still falls well behind some of his colleagues—Scalia, Kagan, and Sotomayor, most especially—yet he comes quite a bit closer in these oral dissents.

Breyer’s oral dissent in McCutcheon diverges from his written dissent in two minor but interesting ways. First, he adopts a more colloquial, evocative tone and language to express his frustration with the majority’s reasoning in striking down aggregate limits on campaign contributions. Some of his modifications and additions seem designed to better engage a wider public. He adds a nice line about how the majority has replaced a set limit on aggregate campaign contributions with “a new number: infinity.” And he also adds the following catchy line: “If the Court in Citizens United opened the door, today’s decision, we fear, will open the floodgates.”

Second, in his oral dissent Breyer tones down (just a touch) his attack on the majority. He adds small qualifiers to some of his most accusatory lines. The following line—“Taken together with Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve”—becomes this—“Taken together with Citizens United, today’s holding, we fear, eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” Also, at one point he throws in a compliment to Chief Justice Roberts, the author of the opinion of the Court, noting that his opinion is a “good opinion—although I don’t agree with it.” We’ve seen this kind of thing before. It’s not easy to launch an attack on an opinion when the author of that opinion is sitting only feet away. This can cause the oral dissenter to pull some punches (as Sotomayor did in her Schuette oral dissent) or, in this case, to go out of the way to emphasize that the critique is not a personal one.

 

 

OT 2014, Predicting the Winners

Predicting the Winners in Yates v. US and Johnson v. US

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The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Wednesday’s oral arguments were apparently filled with much laughter, as noted by the transcript. Perhaps the Court was in a good mood on the third day of arguments this week.

Yates v. United States asks whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519—which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation—where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

This is a close call. The Court was very active in questioning both sides. By my count, the Petitioner (Yates) received 49 questions and the Respondent (Solicitor General) 54 questions, which militates slightly in favor of the Petitioner.

But, if you break down the questions asked by Justice, the picture gets more complicated. Four Justices (Kennedy, Ginsburg, Sotomayor, and Kagan) asked the Respondent fewer questions, while only three Justices (Roberts, Scalia, and Breyer) asked the Petitioner fewer questions. Justice Alito asked both sides an equal number of questions (3). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. The total number of questions slightly favors the Petitioner, while the questions per Justice slightly favors the Respondent. If I had to choose, I would give a slight nod to the Respondent (Solicitor General) based on the higher number of Justices (4) who asked the Respondent fewer questions.

Figure 1.

Lee - 11.5.14 Yates v US

The second case, Johnson v. United States, asks whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

This case is easier to predict, even though the total question count per side was closer. The Court asked almost the same number of questions to each side: 36 to the Petitioner (Johnson) and 37 to the Respondent (Solicitor General). The questions asked by each Justice tells a different picture. Four Justices (Roberts, Ginsberg, Breyer, and Kagan) asked the Petitioner fewer questions. Only two Justices (Scalia and Alito) asked the Respondent fewer questions. Justice Sotomayor asked the same number of questions (5) to each side, while Justices Kennedy and Thomas asked no questions. Another noteworthy point: Justice Alito, in fact, asked 17 questions to the Petitioner—a high number of questions that is somewhat unusual for a Justice to ask one side during oral argument. Justice Alito’s questioning might have inflated the Petitioner’s total question count, in other words. Accordingly, I predict a win for the Petitioner (Johnson), who argued that mere possession of a short-barreled shotgun is not a violent felony under the ACCA.

Figure 2.

Lee - 11.5.14 Johnson v US

 

OT 2014, Predicting the Winners

Predicting the Winners in DHS v. MacLean and Jesinoski v. Countrywide Home Loans

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The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Dep’t of Homeland Security v. MacLean asks whether certain statutory protections codified at 5 U.S.C. § 2302(b)(8)(A), which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information (SSI).

This is a very close call. The Court was very active in questioning both sides. By my count, each side received an equal number of questions (50), which is a relatively high number of questions for oral argument. If you break down the questions asked by Justice, 4 Justices (Scalia, Kennedy, Alito, and Kagan) asked the Petitioner fewer questions, although the differential was not great for Justices Scalia and Alito, who asked the Petitioner only 2 fewer questions. Two Justices (Roberts and Ginsburg) asked the Respondent fewer questions (6 and 5 fewer questions, respectively). Justices Breyer and Sotomayor asked both sides an equal number of questions (10 and 9, respectively). Justice Thomas asked no questions.

My confidence level is not high in predicting the winner. It appears to be a very close case. Justices Breyer and Sotomayor asking both sides an equal number of questions makes this case even harder to predict. Nonetheless, if I had to choose, I would give a slight nod to the Petitioner (Solicitor General) based on the higher number of Justices (4) who asked the Petitioner fewer questions.

Figure 1.

Lee - 11.4.14 Dept of Homeland Security v maclean

The second case, Jesinoski v. Countrywide Home Loans, Inc., asks whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held; or whether the borrower must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

This case is easier to predict. The Court asked the Petitioner (Jesinoski) 18 questions, the Solicitor General supporting the Petitioner 8 questions, and the Respondent (Countrywide Homes Loans) 36 questions. The total question count suggests a win for the Petitioner, who argued that a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction.

If you break down the questions asked by Justice, the tally also favors the Petitioner. Five Justices (Roberts, Scalia, Ginsburg, Breyer, and Kagan) asked the Petitioner’s side (including the SG) fewer questions, although Roberts, Ginsburg, and Kagan asked just one fewer question. Also significant is the fact that Chief Justice Roberts and Justice Breyer asked no questions at all—somewhat a rarity—to Petitioner or the SG supporting Petitioner. Only Justice Alito asked Respondent significantly fewer questions (0 questions to 7 to the Petitioner’s side). The SG’s support is another plus factor for the Petitioner’s position. In short, I predict a victory for the Petitioner.

Figure 2.

Lee - 11.4.14 Jesinoski v Countrywide

 

OT 2014, Predicting the Winners

Predicting the Winners in Zivotofsky v. Kerry and Omnicare v. Laborers District Council

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The Supreme Court heard oral argument in two cases on Monday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Zivotofsky v. Kerry asks whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional, on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

This is a very close call. Petitioner (Zivotofsky) received 51 questions, while the Respondent (Solicitor General) received 46 questions. If you break down the questions asked by Justice, 3 Justices (Roberts, Scalia, and Alito) asked the Petitioner fewer questions, and 4 Justices (Kennedy, Breyer, Sotomayor, and Kagan) asked the Solicitor General fewer questions. Justice Ginsburg asked both sides an equal number of questions. Justice Thomas asked no questions. Given the conservative and liberal alignment of Justices in the question count, the key in this case appears to be Justice Kennedy. My confidence level is not high in predicting Kennedy’s vote based on the question count. He asked only one question more of the Petitioner, and his prior questioning in other cases does not correspond as well to the predicted pattern of outcomes based on question counts. Nonetheless, if I had to choose, my predicted winner is the Respondent (Solicitor General).

Figure 1.

Lee - 11.3.14 zivotofsky v kerry

The second case, Omnicare v. Laborers District Council, asks whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or whether the plaintiff must also allege that the statement was subjectively false—requiring allegations that the speaker’s actual opinion was different from the one expressed—as the Second, Third, and Ninth Circuits have held.

This case is also very hard to predict. The Court asked the Petitioner (Omnicare) 31 questions, Respondent (Laborers District Council) 21 questions, and the Solicitor General supporting Respondent 12 questions. Thus, the questions per side were fairly balanced (31 to 33 questions). If you break down the questions asked by Justice, the tally does not reveal much. Justices Ginsburg, Breyer, and Kagan asked the Petitioner’s side (including the SG) more questions (4, 5, and 4 more questions, respectively). Justices Alito and Sotomayor asked the Respondent’s side more questions (10 and 5 more questions, respectively). Chief Justice Roberts asked the Respondent’s side two more questions, whereas Justice Scalia asked the Petitioner two more questions. Justice Kennedy asked one question each to the Petitioner and to the SG. The SG’s support is a plus factor for the Respondent’s position, but I find the case too close to call based on just the question count.

Figure 2.

Lee - 11.3.14 omnicare v laborers

History of the Court, OT 2014

Measuring the Supreme Court

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How does one measure the overall performance of the Supreme Court? This problem is at the heart of Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky’s basic argument is that, when measured over the course of American history, the Supreme Court has done more harm than good. When faced with “its most important tasks, at its most important moments,” the Court has, more often than not, failed to serve the American people. This is a provocative claim, and it deserves serious consideration. Whether one accepts the claim, however, will likely depend on whether one accepts a series of assumptions on which it is based. They include: that it is even possible to measure Court rulings in this sort of net-benefit-to-society way; that Chemerinsky chooses the correct metrics in determining whether a particular Court ruling belongs in the failure or success column; and that Chemerinsky’s overall tally of Court failures and successes supports his larger claim that the Court has been, on balance, a failure.

These are big questions, each deserving lengthy exploration. I will only be able to touch on them briefly in this post. First, how does one even begin to measure whether a given Court opinion was a good thing or not? It is hard enough to establish any sort of objective measure of the written opinion itself. (More on this in a moment.) But add to this the difficulty of assessing the way Court rulings operate in society and the problem becomes frightfully complicated. Bad rulings can have the effect of mobilizing opposition movements that have benefits for society. (E.g., Bowers v. Hardwick, which helped mobilize gay rights activists.) Good rulings can incite backlash movements that have costs for society. (Brown is the obvious example here.) And then there are the unexpected consequences of practically all major Court rulings—the good, the bad, and the mixed. (Read the late William Stuntz’s brilliant writing on the effects of the Warren Court’s criminal justice revolution and you’ll get a sense of the dilemma here.) All of this is to say that measuring something as complicated as a Supreme Court ruling is an astoundingly difficult task, one that demands not only an assessment of the written opinion but also of the complex, often unanticipated effects of a given Court ruling in society.

What about the particular metrics Chemerinsky uses to assess major Supreme Court rulings? Two points are worth noting here. One is that Chemerinsky focuses his analysis mostly on written opinions. He generally assumes that social effects can be extrapolated from the opinions themselves. The book does not give much space to the complexities unearthed by generations of judicial impact scholarship. This is, I believe, a significant shortcoming of the book. But it is also an understandable choice in a book written by a scholar whose expertise lies predominantly in the area of constitutional doctrine, not socio-legal scholarship, and whose primary goal is to provoke debate. (The basic conclusion found in most judicial impact scholarship is that the effects of bad cases are never quite as bad as feared, while the effects of good cases are never quite as good as hoped. Thus, this scholarship would largely work to undermine or at least weaken the simplicity and boldness of Chemerinsky’s case against the Court.)

The other complication—one that Chemerinsky recognizes but does not resolve—is the difficulty, and perhaps the impossibility, of locating criteria by which to measure whether a Court decision was a success or failure that does not just reduce to the ideological commitments of the author. Chemerinsky tries to negotiate this problem by emphasizing those decisions that have been universally praised or condemned. These are the decisions that reside in either the canon or “anticanon” of Supreme Court jurisprudence: Brown, West Virginia v. Barnette, Gideon v. Wainwright, Reynolds v. Sims, on the one side; Dred Scott, Plessy, Lochner, Buck v. Bell, Korematsu, on the other. But even if these categorizations are accepted (certainly not all would agree on this point), Chemerinsky does not confine his analysis to these canonical and anticanonical cases. After all, these cases constitute only a small minority of the Court’s decisions. To make his case against the Court, he compiles a list of successes and failures that includes much more controversial categorizations, placing rulings whose merits are still quite contested—such as recent Court decisions involving affirmative action or the scope of congressional power—into either the failure or success columns. And despite his protestations to the contrary, Chemerinsky’s assessments follow predictable lines: decisions favored by liberals are successes, those favored by conservatives, failures.

Finally, once one settles on a way to define success and failure for the Court, how does one compare them? Does Dred Scott plus Brown equal success, failure, or a wash? Bad decisions that upheld bad policy (such as Plessy or Korematsu) do not provide the same evidence in the case against the Court as bad decisions that overturned good policy (e.g., Dred Scott, Lochner). Similarly, good decisions that upheld good policy (e.g., West Coast Hotel, Heart of Atlanta) do not add the same value for Chemerinsky’s purposes as good decisions that strike down bad policy (e.g., Barnette, Brown, Gideon).

All of this is to say that Chemerinsky’s book is a great conversation starter. In the end, I found the questions underlying the eye-catching thesis more interesting than the thesis itself. Regardless of whether one agrees with Chemerinsky that the Court has failed more often than it has succeeded, it is fascinating just to think through the challenges of assessing the Court’s performance over its more than two centuries of history.

Weekly Roundup

Weekly Roundup – October 31, 2014

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

The three Yale-graduate justices visited their alma mater for an awards ceremony, where Justice Alito revealed his deadpan sense of humor.

Why has the Court seemingly gone silent even as it takes action on critical issues such as gay marriage, voting rights, and abortion? Adam Liptak reviews in the New York Times, and ISCOTUS director Chris Schmidt offers his own thoughts here.

Ruth Bader Ginsburg approves of John Oliver’s viral video sketch portraying the Supreme Court as nine talking dogs.

Why are we so fascinated with the justices’ cultural tastes? Time magazine examines the latest in a series of “cultural-diet revelations” from the judges.

The Court takes on its first case involving a federal whistleblower.

Does a child’s wish to list “Israel” as the nation of birth on his American passport disrupt the Obama administration’s efforts to establish piece in the region? The Court hears oral arguments in the case next week.

Chris Schmidt considers Erwin Chemerinsky’s new book and America’s love-hate relationship with the Supreme Court.

Will the Court take another look at Obamacare?

OT 2014

America’s Love-Hate Relationship with the Supreme Court

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I’m currently reading Erwin Chemerinsky’s new book, The Case Against the Supreme Court. Chemerinsky is a very persuasive advocate. His writing is clear and accessible, his tone moderate and open. The portrait he paints of the Court is pretty bleak. “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments,” he writes. I’m not going to say that Chemerinsky fully makes his case, but he has a pretty good go at it. For anyone who begins the book with visions of the Supreme Court as the defender of the dispossessed and disempowered, the book offers a bracing ride. The Court that emerges from this book is beaten and battered, a diminished institution whose failures, in Chemerinsky’s final estimate, far outweigh its achievements.

Although The Case Against the Supreme Court is particularly notable in that it is the work of an unabashed admirer of the Court who has become deeply disillusioned, Chemerinsky’s basic critique of the Court is very much in line with the zeitgeist today. A critical posture toward the Court has become standard fare—increasingly so, I think. We have also seen a general chastening of expectations of what the Court can and should do. Public opinion of the Court has steadily declined in recent decades. Scathing attacks on the Court, while always a part of our public discourse, are now common. While much of this can be explained by liberal frustration with the conservative tendencies of the Rehnquist and Roberts Courts, it cannot be reduced to this. Some of the most condemnatory attacks on the Court have come from the political right. Also, a growing number of scholars have gone down the path that Chemerinsky recently discovered, questioning not only the current Court but the institution itself. Some have urged us to consider whether the costs of judicial review outweigh the benefits; others have suggested that even the most iconic of Court achievements, such as Brown v. Board of Education, gave the nation far less than we might have thought. The Supreme Court has come in for some rough sailing of late.

So why, then, is there so much public fascination—a fascination that sometimes approaches idolatry—with the Supreme Court and the people who serve on it? This curious love-hate juxtaposition came to my mind, because while I was reading Chemerinsky’s diatribe against the Court I came across an article last week in the Washington Post on the social media industry that has grown up around the Court. We have a fantasy league for the Supreme Court. People are making animated re-creations of Court arguments. Comedian John Oliver’s oral argument skit with animals was a YouTube hit. The Justices have done their part to help fuel the Court-watching scene. They are out and about like never before, attracting impressive audiences and regular media attention wherever they go. Semi-revelatory memoirs seem to be the new norm for justices. Time just ran an article in its “Entertainment: Celebrities” section titled “Why People Love Reading About Supreme Court Justices’ Favorite Movies.”

What’s going on here? I think much of this can be attributed to various broader developments in American society. On the one hand, public fascination is fueled by the rise of social media, which allows networks of followers to form and expand, and by the fact that the Court has become a part of the broader celebrity-obsessed culture in which we live. On the other hand, disillusionment with the Court is fueled by growing ideological polarization coupled with a general decline in faith in institutions across American society.

Even as we think less and less of the Court, we seem to be thinking more and more about the Court.

History of the Court, OT 2014, Same Sex Marriage

Some Thoughts on a “Silent” Supreme Court

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There has been much discussion about the Supreme Court’s recent string of highly consequential actions in which the justices have been conspicuously silent about what they are doing. Because of the great lengths the justices go to lay out the precise reasoning of their decisions, they often proudly proclaim the Court as the most transparent of the three branches of government. But this kind of transparency has not been in evidence when it comes to the most significant happenings at the High Court this Term. Most notably, when the Court refused certiorari in a series of same-sex marriage case appeals, no reasons were given. Although denials of certiorari typically do not come with explanations (it would be impractical, considering the thousands of cases the Court denies every term), some people thought such a momentous denial would at least elicit a disgruntled justice to issue a dissenting statement. But no. The Court was silent.

Predictably, some have voiced frustration with this reticent turn. How can the Court regularly intervene on such major constitutional issues yet not give the country any real guidance on what it is doing? Isn’t this the Court’s responsibility? Isn’t the very legitimacy of the Court based on its stated reasoning and not just on the consequences of its actions? These are all good points. But these kinds of criticisms are not particularly new, and it’s worth putting them into historical perspective.

For example, following Brown v. Board of Education (1954), the Court issued a series of per curium decisions extending the desegregation requirement of Brown from public schools to other state-operated facilities—beaches, golf courses, buses, parks. The reasoning in these opinions was little more than a citation to Brown. Many legal scholars asked what the Court was doing here. This extension of Brown was particularly curious because the Brown decision seemed to draw on the specific costs of racial segregation in schools as a basis for its decision. Could the same psychological harms that (the Court suggested) resulted from state-enforced segregation in schools also be found in state-enforced segregation on golf courses and beaches? Critics of these decisions had a point, but with some historical perspective these criticisms appear small in connection with the broader work being done by the Court to advance the cause of civil rights.

Like the post-Brown per curium decisions, the Court’s reticence on same-sex marriage will fare just fine in the judgment of history. The justices know this. They are playing the long game.

Affordable Care Act, OT 2013

A Look Back—Justice Ginsburg’s Oral Dissent in Hobby Lobby

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With the beginning of the new term at the Supreme Court comes the release of audio from last Term’s opinion announcements, available now on Oyez. In a previous post I discussed last Term’s most notable oral dissent, Justice Sotomayor’s in Schuette v. Coalition to Defend Affirmative Action, in which she challenged her conservative colleagues for their unwillingness to confront the “reality of race in American society.” In this post I look at another of the Term’s major dissenting opinions that was announced from the bench: Justice Ginsburg’s oral dissent in Burwell v. Hobby Lobby.

In Hobby Lobby, the Court held that the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from requiring businesses to include coverage in their health care plans for certain methods of contraception that the owners of the business object to on religious grounds. Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented.

Justice Ginsburg’s Hobby Lobby oral dissent, like Justice Sotomayor’s oral dissent in Schuette, consists of excerpts from her written opinion, with some reordering of arguments and minor editing. And like Sotomayor, Ginsburg made some interesting decisions in translating her lengthy written dissent into a spoken summary.

Justice Ginsburg opted not to start off with the sharp language that begins her written dissent. The written dissent opens with a denunciation of the majority’s decision as one “of startling breadth,” as “extreme” and “radical.” In her bench announcement, by contrast, Justice Ginsburg skips over the accusatory, attention-grabbing language of her written opinion’s introduction. The bench dissent opens rather mildly, with a discussion of the goals of the Affordable Care Act (ACA), the source of the contraception requirement, summarizing material from the body of her written dissent.

Justice Ginsburg’s decision to place the ACA at the heart of the case is significant, of course. Justice Alito in his majority opinion (both the written version and his bench announcement) places the focus from the start squarely on the companies claiming a religious exemption from the ACA’s contraception coverage requirement. Justice Alito’s discussion of the ACA comes later in the opinion, and then it is rather perfunctory. (In her written opinion, Justice Ginsburg notes that the majority only “grudgingly” conceded that the contraception requirement met RFRA’s “compelling government interest” requirement.) Justice Ginsburg’s point, then, is that the case is as much about the ACA and the law’s goal of providing preventative medical care that was, as she wrote in her opinion, “responsive to women’s needs,” as it was about religious freedom.

In reading her dissent, Justice Ginsburg starts off slowly, almost haltingly. Her presentation gains force over the course of her reading, however, as she settles into her characteristic presentation style, soft-spoken and precise.

Ginsburg’s bench announcement emphasizes in particular two themes from her written dissent. First, as indicated by her decision to start her oral dissent with a discussion of the ACA, she insists that more attention be given to the costs to women of granting companies a religious exemption from the contraception coverage requirement. In their near-exclusive focus on the religious freedom claim of the businesses, the justices in the majority, she argues, fail to appreciate the impact of their decision on the intended beneficiaries of the ACA. To amplify this point, she quotes Zechariah Chaffee’s famous description of the limits of free speech: “Your right to swing your arm ends where the other man’s nose begins.” (She really likes this quotation. Not only did she feature it in her written and oral dissents, she also quoted it in a recent interview when discussing Hobby Lobby.) Her basic point: religious-based choices should not be imposed on employees who do not hold those beliefs.

A second theme that features prominently in her bench dissent is a concern with the implications of the Court’s holding. “Reading the [Religious Freedom Restoration] Act expansively, as the Court does, raises a host of me-too questions,” she notes early in her oral dissent. She identifies potential future religious freedom claims, deriving from religious-based objections to blood transfusions, vaccinations, antidepressants, or medications derived from pigs. She returns to these slippery-slope concerns later in her oral dissent. What about religious objections to minimum wage or equal pay for equal work? What about a religious-based refusal to employ “a single woman without her father’s consent or a married woman without her husband’s consent”? These are all scenarios that featured prominently at oral argument and that appear toward the end of her written dissent. They are all evidence, she suggests, of the “potentially sweeping” nature of the majority’s decision.

In concluding her oral dissent, Justice Ginsburg turns to the values and limits of a religiously pluralistic society. She pulls material from a footnote of her written opinion, stating that “[o]ur cosmopolitan nation is made up of people of almost every conceivable religious preference” (quoting from Braunfeld v. Brown (1961)). She then draws on language from United States v. Lee (1982), a case involving a free exercise challenge by an Amish businessman who claimed a religious-based exemption from paying into Social Security. “[S]ome religious practices,” the Lee Court explained, must “yield to the common good.”

In this way, Justice Ginsburg returns to where she began, with the values advanced through the ACA and the need to ensure that the preventative health care provisions of the ACA remain effective. While lacking some of the personalized passion that came through in Justice Sotomayor’s Schuette oral dissent, Justice Ginsburg’s Hobby Lobby oral dissent puts well on display her quieter persuasive skills.

Affirmative Action, OT 2013

A Look Back—Justice Sotomayor’s First Oral Dissent

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The Supreme Court has finally released—and Oyez has made available—audio recordings of last Term’s opinion announcements. Most of these announcements are summaries of majority opinions, but there are also a few oral dissents. Standard practice on the Supreme Court is for only the author of the opinion of the Court to read a summary of that opinion from the bench. The justices typically do not also summarize their dissents or concurrences. Yet on occasion—usually a handful of times a Term—a justice will decide to read a dissent from the bench. The justices recognize oral dissents as a way to amplify the dissenter’s displeasure with the majority holding. They often explain that in reading their dissents from the bench they seek to draw increased attention to their position.

In a Term with numerous important decisions featuring oral dissents (more on those in subsequent postings), the most notable was surely the dissent that Justice Sotomayor read in the Term’s affirmative action case, Schuette v. Coalition to Defend Affirmative Action. In her five years on the Supreme Court, Sotomayor had never before read a dissent from the bench. Indeed, she had said that she didn’t think much of the practice, once dismissing oral dissents as “entertainment for the press.” She noted her frustration when “listening to my colleagues read their summary of our opinion”: “I’m saying, ‘That’s not what the case is really about; that’s not what it said.’”

Sotomayor said she changed her mind about oral dissents because of a discussion with Linda Greenhouse, in which the ex-New York Times Supreme Court reporter convinced the justice of their potential value. She chose Shuette, a case in which a six-justice majority upheld Michigan’s ban on racial preferences in its public universities, as the occasion for her first bench dissent. When Justice Sotomayor first read her dissent, I posted a discussion on inaugural oral dissents in which I wrote:

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.

Now we can actually listen to what she said. 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. The bulk of the statement is a summary of why she feels the “political process” precedents of Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) should control in this case, and of why Michigan voters’ effort to amend their constitution to prohibit racial preferences in higher education should be struck down as a violation of the Fourteenth Amendment’s Equal Protection Clause.

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.

To challenge the wisdom of race-conscious admissions policies, Justice Sotomayor argues, ignores the value of diversity in higher education. At this point she diverges from her the language written opinion, toning down her accusations against her colleagues. Her written opinion reads as follows: To question “race-sensitive admissions policies … ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.” Translated into her bench dissent, she said that to question race-sensitive admissions policies “reveals a fundamental understanding about the reality of race in American society.” (I assume she meant to say “misunderstanding about the reality of race in society,” which would make more sense. Her misstatement or self-edit might indicate that throwing barbs at colleagues is a bit harder to do when they’re sitting right next to you. According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She continues (again toning down slightly the language of the written dissent): “In the end, my colleagues believe that we should leave race out of the constitutional picture entirely and let the voters sort it out. This reasoning ignores the stark reality, all too apparent in communities throughout the country: that race still matters.”

She then concludes 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.