A Supreme Court Term Without Any Dissents Read From the Bench

Another regrettable change from the Supreme Court's longstanding tradition.

|The Volokh Conspiracy |

The Supreme Court has now experimented with broadcasting oral arguments. It was no longer feasible to hold proceedings in the Court. For at least 10 cases, the Justices allowed advocates and Justices to participate remotely. However, during this tumultuous time, the Justices have abandoned entirely another longstanding tradition: announcing opinions from the bench. Generally, the author that writes the majority opinion will give a brief summary, and note any concurrences or dissents.

On rare occasions, a Justice will read a summary of his or her dissent from the bench. (Once, Justice Scalia read his concurrence from the bench!) Here, the dissenter wishes to draw attention to how wrong the majority got it. Each term, there are a handful of dissents read from the bench. New York Times reporter Adam Liptak observed, "A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain."

These moments are powerful in the usually staid Court, and send a message to the public. Often, the oral dissent deviates, however slightly from the written opinion. I understand that these statements are not always vetted by the other members of the dissent. And, at times, ad-libbing can create tensions. Some Justices will even give the press a written copy of their statement; these documents are not for public disclosure. But the Justices want to make sure the media accurately quote them.

Alas, I do not think we will have any audio hand-downs this year. Since the Court went virtual, opinions have been released without any fanfare. The Court simply posted PDFs on SupremeCourt.gov at 10:00 a.m. To be more precise, the Court would post one PDF, and if there was a second case, wait another five minutes before posting the second PDF, and so forth. Even though the Justices were not actually announcing their opinions from the bench, the Court's IT staff spaced apart the postings to simulate what a real decision day would feel like.

And with no hand-downs, we will not have any dissents read from the bench. I regret the loss of this tradition. The audio of the so-called "hand-downs" is not released the same week, as are oral arguments. Usually, Oyez publishes this audio around the following October. Randy and I used this audio in our video series. It was powerful to listen to the Justice describe a case in their own words. Now this sterile term will become even more sterile.

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  1. I remember in Texas v. Johnson, the flag-burning case, that Justice Stevens stood up to read his dissent. Or so I heard, I wasn’t there.

    1. How could they tell?

  2. “Often, the oral dissent deviates, however slightly from the written opinion.”

    So which version “counted”?

    It’s bad enough with the US District Court in Puerto Rico and Spanish not always translating directly to English, but here you have two copies in the same language.

  3. These moments are powerful in the usually staid Court, and send a message to the public.

    I call BS. Most of the public never hears these things anyway, partly because of the Court’s ridiculous, restrictive television policies, and mostly because we all know the written opinions are what count.

    And that’s doubly true with dissents. The ONLY real reason to write a dissent is to make the justice’s views known for the benefit of history and perhaps in the hope that some future generation of SCOTUS justices might be persuaded by it. Otherwise, you could just note a dissent without an opinion, as Pierce Butler did in Buck v. Bell, for instance.

    So when a dissent carries the day historically, e.g., Brandeis in Olmstead, it doesn’t matter one bit whether Brandeis read it from the bench.

    The whole tradition is stupid. It’s like arguing that if the Court got rid of “Oyez Oyez Oyez”, it would harm the Court.

    1. I call BS. Most of the public never hears these things anyway, partly because of the Court’s ridiculous, restrictive television policies, and mostly because we all know the written opinions are what count.

      They don’t hear these things, but they hear of these things.

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