A Look Back—Justice Sotomayor’s First Oral Dissent

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.

2 thoughts on “A Look Back—Justice Sotomayor’s First Oral Dissent”

  1. “Supreme Court has finally released”

    why don’t they just post this on their own website?

    Opinion announcements are meant for the public. Why else hve them? Not posting them along with the rest of the audio is wrong. We shouldn’t have to rely on third parties.

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