“Swallow a Dissent”

June 4th, 2015

In remarks before the ABA Section on International Law, Justice Sotomayor used a term I haven’t heard before: “swallow a dissent.”

Sotomayor, considered one of four liberals on the Court, offered an insight as to why justices, who are often sharply divided, still have so many unanimous decisions — which she pegged at 60 percent. Many of those decisions, she explained, involve statutory interpretation, and the legal answer might not be clear. “What the bar and industry needs is a clear answer,” she said, adding, “It is not uncommon in statutory cases for a justice to say, ‘I’ll swallow a dissent, or I will dissent silently’.”

I found the term used “Judicial Conflict and Consensus” by Goldman and Lamb, which mentioned a Justice may “swallow dissent for institutional reasons.”