At the end of each Supreme Court session, individual justices on the losing side of a case often find that a written dissent is not enough. They feel compelled to read excerpts from the tall mahogany bench and rhetorically grab courtroom spectators by the collar to convince them of the majority’s wrongheadedness.
These gripping moments of anger and frustration flesh out the robe-clad justices, usually loath to reveal themselves beyond their opinions. As much as the words, it’s the pitch of a voice and intensity of facial expressions, including what’s seen of fellow justices along the bench.
But the drama ended when the building was shuttered.
Alito’s written dissent in the recent Obamacare case was sufficiently potent to draw attention in news stories and on social media, particularly his assertion, “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern … with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”
“My colleagues fundamentally misunderstand the nature of the injustice,” Sotomayor said of the Michigan measure that prevented any lobbying for race-based admissions. “The right 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.”
He continued: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. … But do not celebrate the Constitution. It had nothing to do with it.”
Fireworks and eye rolls
Before the Supreme Court closed its columned building as part of the nationwide response to the coronavirus pandemic, the justices took the bench to release rulings. First, the author of the majority opinion would read excerpts. The recitations were straightforward fare of the bottom-line judgment, some legal reasoning and the vote.
Any fireworks came with the occasional dissent. Rarely would a justice undertake an oral dissent more than once a session. Ginsburg, however, offered three in late June 2013, including in the consequential voting rights case of Shelby County v. Holder. In a separate 2013 dispute, over the reach of job-discrimination law, as she was reading her dissent, Alito grew irritated and rolled his eyes.
Another unexpected moment of theater occurred during bench announcements in a capital punishment case in June 2015, as the majority rejected defendants’ challenge to a method of lethal injection.
That last suggestion riled Scalia and he decided to speak out. He had joined the Alito majority and was not protesting the judgment. Scalia’s remarks revealed his sentiment regarding the Breyer-Ginsburg suggestion, yet also showed that he was still fuming over the decision that session declaring a constitutional right to same-sex marriage.
“Last Friday five justices took the issue of same-sex marriage away from the people,” he said, “on the basis of nothing but their own policy preferences. … Maybe we should celebrate the fact that two justices are willing to kill the death penalty outright instead of pecking it to death, as has been the case.”
The Supreme Court has not yet announced whether it will resume public courtroom sessions for the term that begins next October. Perhaps the end of that 2021-22 session will bring a return of vivid dissents from the bench.
“The practice amounts to rigging elections,” Justice Elena Kagan said, speaking for a total of 13 minutes. As she concluded, her voice seemed to crack with emotion.
“The majority just says it can’t do anything about the problem,” she said. ” … And of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect, but deep sadness, Justices Ginsburg, Breyer, Sotomayor and I dissent.”
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