Oral Dissents at the Supreme Court: They Can Still Happen

|The Volokh Conspiracy |

In most years, the Supreme Court Justices go on the bench to announce their opinions in person, with the authors of each majority opinion reading a brief summary. A few times a year, dissenting Justices who feel strongly enough will also read a summary of their dissents, which can often add drama and draw public attention.

As Josh noted on May 24, this Spring the Court is obviously not meeting in person to announce opinions, so the Justices aren't reading aloud from their opinions, either; Josh regretted that. An AP story today discusses the matter as well, quoting several experts who view the practice as valuable.

I just wanted to mention that there's no reason why such reading of dissents—or, for those Justices who want to, majority opinions—couldn't continue this year via streaming audio. The Justices' May oral arguments were made available to the public via what was essentially a conference call streamed and archived by C-SPAN.

Precisely the same technology could be used for Justices who want to read opinion summaries. A Justice who wants to do this could just alert the Chief and the other Justices, and ask that such a call be set up; the other Justices would be welcome to be on the call, though there's no reason why they should all feel obligated. (Presumably the majority opinion author might feel obligated to read the summary of the majority, and maybe some others might feel that they ought to listen in, but it would be a very slight burden on most of the colleagues.)

In principle, I suppose a Justice could just unilaterally ask the administrative people to arrange this, though I would think such a move would be seen as uncollegial. But if the Justice asks the others, I expect that rejecting such a reasonable request—which is very much in keeping with the tradition of oral dissents—would be seen as uncollegial, too. And of course several Justices might want to do this, each for a different case.

So we might yet hear oral dissents, likely with accompanying oral summaries of the majority (and maybe even the very rare oral concurrence). If we don't, that would be just the choice of the dissenters, not some inherent limitation stemming from the technology, court rules, or tradition.

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  1. Asking the Court’s press officer to post a PDF statement might work just as well. Presumably within the remit of justices individually, and the Court already publishes their speeches when requested.

    Mr. D.

  2. This is a new environment, and bad things could happen. Since they are present when opinions are read from the bench, should Justices be virtually present when individual Justices read their opinions online? Will the temptation on them to succumb to political pressure by not “showing up“ for opinion reading be great? Will such reading of opinions, especially dissents, be seen (and used by politicians) as simple preening by Justices, eroding their authority? If any of these is true, we risk frittering away years of accumulated capital, whether of comity among Justices or the authority Americans have been willing to grant the Court.

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