Disrespectful Dissents on the Roberts Court

March 25th, 2015

At the end of Justice Scalia’s dissent in Alabama Legislative Black Caucus v. Alabama, he dropped the jurisprudential mic.

Accordingly, I dissent.

Much like Rodney Dangerfield, Justice Breyer’s majority opinion gets no respect. Justice Scalia is no stranger to the disrespectful dissent. A quick search on WestLaw for “I Dissent” with no “respect” since 2006 reveals a number of disrespectful dissents (this list is not complete):

  1. House v. Bell (2006) (Roberts, C.J., dissenting) (“The evidence as a whole certainly does not establish that House is actually innocent of the crime of murdering Carolyn Muncey, and accordingly I dissent.”
  2. Hamdan v. Rumsfield (2006) (Scalia, J., dissenting) (“For the foregoing reasons, I dissent.”).
  3. Uttecht v. Brown (2007) (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  4. Gonzales v. Carhart (2007) (Thomas, J., concurring) (“I dissent from the Court’s disposition.”).
  5. Crawford v. Marion County Election Bd (2008)  (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  6. U.S v. Santos (2008) (Breyer, J., dissenting) (“In light of these alternative possibilities, I dissent.”).
  7. Boumediene v. Bush (2008) (Scalia, J., dissenting) (“The Nation will live to regret what the Court has done today. I dissent.”).
  8. Yeager v. U.S. (2008) (Scalia, J., dissenting) (“Because that result neither accords with the original meaning of the Double Jeopardy Clause nor is required by the Court’s precedents, I dissent.”).
  9. Ricci v. DeStefano (2009) (Ginsburg, J., dissenting) (“I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.””).
  10. Shady Grove Orthopedia v. Allstate Ins. Co. (2010) (Ginsburg, J., dissenting) (“Because today’s judgment radically departs from that course, I dissent.”).
  11. Michigan v. Bryant (2011) (Scalia, J., dissenting) (“Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent.”).
  12. Arizona v. United States (2012) (Scalia, J., dissenting) (“Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.).
  13. United States v. Windsor (2013) (Scalia, J., dissenting) (“But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.”).
  14. E.P.A. v. EME Homer City Generation (Scalia, J., dissenting) (“I dissent.”).
  15. Town of Greece v. Galloway (2014) (Breyer, J., dissenting) (“I dissent from the Court’s decision to the contrary.”).
  16. Burwell v. Hobby Lobby (2014) (Ginsburg, J., dissenting) (“Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”)

In first place (surprising no one) is Justice Scalia with 8 disrespectful dissents (counting the Alabama case). Second place was Justice Breyer with 4. RBG had had 3. Thomas and the Chief each had one. The Chief’s dissent was in his first year on the Court! Interestingly, Justices Stevens, Souter, Alito, Sotomayor, and Kagan had zero. Again, my research was cursory, and I’m sure I missed some. Please feel free to add others in the comments.

Update: A note in the Harvard Law Review explores the “respectful dissent.”

The respectful dissent is the dominant speech act of the Roberts Court. According to Figure 2, this rhetoric manifested in nearly 70% of the individual principal dissenting opinions handed down during the 2005 to 2009 Terms, at one point rising to an impressive 83.7%. To give a more complete view of dissenting practice, however, this sec- tion focuses not on the default practice, but on those dissents that de- viate from the norm. Ultimately, this discussion of minority dissenting practices will add an important — and otherwise unseen — nuance to the legitimation rationale underlying the Court’s collegial dissents.

As Figure 2 demonstrates, there are two exceptions to the respect- ful dissent. First, there are the “assertive dissents” in which the pro- testing Justice writes only, “I dissent.”108 Here the Justice appropriates the traditional dissenting structure, but foregoes the respectful rhetoric.

Second, there is a broad category of “other,” which includes procedural statements,111 rhetorical variations on the speech act not couched in the language of dissent,112 and — as is sometimes the case — no speech act at all.113 As a threshold matter, the very existence and use of these alternative speech acts does not detract from — but rather adds to — the robustness of the respectful default. A dissenting re- gime without alternatives would be not only artificial, but also imprac- tical and unwise — impractical because not every conflict between dis- senter and majority need elicit a personal statement of disagreement114 and unwise because sustained, unthinking usage of the rhetoric of re- spect might obviate the effect of that speech act.115



And observations:

The implications for the collegial norm and the respectful dissent as legitimating tools are twofold. First, the choice to dissent assertively — to appropriate the form, but not the respectful rhetoric, of the dom- inant speech act — implicitly recognizes the respectful dissent’s ability to legitimate the majority decision. This idea rests on the intuitive claim that an assertive dissent is ultimately an act of protest, a signal from one Justice to the world at large that the majority opinion does not deserve legitimation — that the majority has acted impermissibly and produced significant costs for political society.124 It follows that if the dissenter believes that the use of “I dissent” is to deny or weaken the majority’s legitimacy, the inverse must also be true: to say “I res- pectfully dissent” is to convey legitimacy. In other words, the assertive dissenter has engaged — and therefore embraced — the positive bene- fits of collegial norms and the respectful dialogue through his choice of form and language. Second, this observation further suggests that the dissenting Justice believes that the Court’s legitimacy is, when he writes, relatively secure. If it were otherwise, the Court would not be able to sustain the occasional, vigorous criticism.

H/T Kedar Bhatia