"The Brooding Spirit of the Law": Supreme Court Justices Reading Dissents from the Bench*

Article excerpt

In rare instances, a Supreme Court justice may elect to call attention to his or her displeasure with a majority decision by reading a dissenting opinion from the bench. We document this phenomenon by constructing a data set from audio files of Court proceedings and news accounts. We then test a model explaining why justices use this practice selectively by analyzing ideological, strategic, and institutional variables. Judicial review, formal alteration of precedent, size of majority coalition, and issue area influence this behavior. Ideological distance between the dissenter and majority opinion writer produces a counterintuitive relationship. We suspect that reading a dissent is an action selectively undertaken when bargaining and accommodation among ideologically proximate justices has broken down irreparably.

PROFFESIONAL AND STRATEGIC CONSIDERATIONS IN THE NORM OF DISSENT

In 1990, then-Circuit Court Judge Ruth Bader Ginsburg noted "when to acquiesce and when to go it alone is a question our system allows each judge to resolve for herself" (p. 141). Respect is often accorded to those who write in dissent. Justices who frequently write dissenting opinions are often viewed as romantic figures in the history of the law. The so-called Great Dissenters, such as Holmes, Brandeis, Harlan, Black, Douglas, and Scalia, may have achieved that label and notoriety because writing a dissenting opinion can be thought a means of civil disobedience. Dissenting opinions have the effect of "offering protest and securing systemic change" (Campbell, 1983: 306). As Justice Douglas (1960) wrote:

It is the right of dissent, not the right or duty to conform, which gives dignity, worth, and individuality to man. The right to dissent is the only thing that makes life tolerable for a judge of an appellate court . . . the affairs of government could not be conducted by democratic standards without it (pp. 4-5).

Chief Justice Hughes (1936) wrote that dissenting is "an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed" (p. 68). Similarly, Justice Cardozo (1925) noted, "The spokesman of the Court is cautious, timid, fearful of the vivid word. . . . The dissenter speaks to the future, and his voice is pitched to a key that will carry throughout the years" (pp. 714-15).

Thus, the justices themselves view dissent as a feature of collegial norms on appellate courts integral to decision making. While systematic influences tend to limit the number of dissents and discourage the practice in general,1 the rate at which it occurs has been of some interest to those who study the Supreme Court. Writing in dissent has become a norm among appellate judges and Supreme Court justices, rather than an exception. It is a component of the collaboration and bargaining characterized by opinion writing and voting fluidity.2 However, it remains predominantly a behavioral option to which justices resort when those processes are strained. In addition, other forms of expressing dissent can be revealing. The subject of our study here raises the prospect of a more severe response on the part of the justices - dissenting from the bench may indicate that bargaining and accommodation have broken down irreparably. It is an extraordinary event when a justice not only writes in dissent, but purposefully draws attention to that dissent by reading it from the bench.

In this article we examine the institutional practice of reading a dissenting opinion from the bench. Journalists who cover the Court characterize a dissent being read from the bench as a statement of profound disagreement by a dissenting justice, which makes the impact of this rare phenomenon substantial (Greenhouse, 2007; Biskupic, 1999). Reading a dissent from the bench is a means by which justices can signal their displeasure to the press, the American people, and the other branches of government. …