Speak Your Dissent
A first step for a Court that lost the people’s faith
If everything seems stable within the Supreme Court right now, surprise: the Court is in dire straits, and its supporters are scrounging to rebuild public trust.
It’s clear that the Court is facing a crisis of confidence. A major Gallup poll showed that 25% of Americans have confidence in the Court, while 36% did last year. Moreover, this year’s figure is five points lower than the previous all-time low point for the Court in Gallup’s last century of polling. Axios polls came in slightly higher, with 38% approving and 61% disapproving of the Court’s ability to function.
It’s also clear that Americans’ trust in the Court declined due to major decisions in cases like Dobbs v. Women’s Health Organization and West Virginia v. Environmental Protection Agency, which were handed down in June. In July, Marquette Law School published national polls that showed the Court’s approval at 38% and disapproval at 61%. But back in May, after the Dobbs opinion leaked, they found that 44% of respondents approved of the Court’s conduct. Approval was even higher in March at 54%—before the public saw where the Court was headed.
It seems, then, that regardless of high-browed legal discussions about cases like Dobbs, people care more about the suffering that will come from the Court’s decisions. Legal arguments are important, and many have successfully argued against the Court’s overreaching decision in Dobbs (Kaity Taylor did so for this journal). But I point my gaze toward what comes next—resting on the idea that, if it wasn’t clear before, people see a gap between the legal theories embedded in the Court’s decisions and the Court’s regard for how those theories actually manifest.
If the Court cares about its ability to maintain its legitimacy, it ought to start with the basics. It ought to care about giving the people opportunities to connect with it, and the place to start is a necessary, yet bare minimum—a Court tradition that allowed justices to show their stake in the decisions and precedent they handed down. It’s time now for the Court to recall dissents from the bench.
The power of oral dissents: where they went & where they can go now
In a few cases per Court term, and for around the last 70 years, justices read a version of their dissenting opinions aloud to emphasize their frustration with a decision. In modern cases, or at least pre-COVID modern cases, Court decisions were officially announced by the Chief Justice before the author of the majority opinion spoke about the case. After this, a justice could choose to speak out against the majority opinion in the form of an oral dissent. In these moments, and only these moments, justices and their reactions to intrajudicial confrontation could be observed in an official manner by journalists, and thus the public. Many audio files of oral dissents have been published on the Oyez website for public engagement, expanding awareness of and connectivity to the Court.
This was the Court’s institutional practice that most closely addressed judicial accountability. These were impactful moments, with only a handful of dissents brought to the bench each term. Critiques of justices who issue dangerous opinions with little regard for their impact are well-founded. Spoken dissents directly addressed those concerns and other frustrations towards justices who callously issued perilous opinions with little regard for their consequences. Specifically, they allowed the public to see the Court’s humanity—whether through a moving dissent from a disheartened justice, or a look of utter indifference on the face of a majority justice upon hearing a salient dissent.
There were many aspects of oral dissents that made them useful tools for justices to emphasize constitutional issues, including their flexibility. Indeed, oral dissents were a different animal than written opinions. Justices reading from the bench could fine-tune the wording of their written dissents and restructure them to emphasize key issues. They could tailor a scathing attack on the majority opinion’s logic and question the legal principles upon which the majority opinion writer relied mere moments after the majority opinion’s text is read aloud. The justices were free to make their stances known and acknowledge how the world could be made worse by new precedents.
No discussion about oral dissents should leave out Justice Ginsburg, who illustrated the power of oral dissents in shaping Court identity. A famous dissenter with the likes of Justices Black, Brandeis, and Scalia, she augmented her judicial reputation by presenting her dissents at the bench. Again, most justices deliver oral dissents once a term, if they do so at all. In June of 2013 alone, Ginsburg delivered three. From 1993 to 2007, Ginsburg took 10.6% of her dissents to the bench. She even used to circulate her oral dissents in writing to members of the press.
Ginsburg didn’t do this to popularize oral dissents or grandstand—it was a display of innovation and strength in constitutional fidelity that resonated with people. In 2007, the New York Times described how her affinity for oral dissents gave her a “new voice” on the Court, which in turn gave the Court a public-facing spirit. Justice Ginsburg was an example of how, whether by intention or not, oral dissents allow justices to express their devotion to the people’s well-being while still adhering to the spirit of the Constitution.
On another ideological hand, Justice Alito’s experience suggests that both the delivery and reception of oral dissents by justices grant the public a crucial nexus to the Court. A decade ago, Ginsburg delivered an oral dissent to Alito’s majority opinion in Vance v. Ball State University, a workplace harassment case. Alito grew visibly irritated and rolled his eyes throughout Ginsburg’s dissent, which led to media coverage and developed further public conversation about Vance. Regardless of whether you wanted to slap Alito in the face or on the back for that moment, the Court revealed itself to be human in its makeup.
Oral dissents and their reactions, then, open the insular Court to the public. Rather than keep the public at an impossible distance, oral dissents and the confrontations arising from them blend elements of transparency and accountability. Trust, or at least the building of trust, starts with the perception that constitutional issues are worth (literally) defending and standing up for.
In other cases, oral dissents can become historical “earmarks” that allow justices to pick up where they left off—for better or for worse. Alito can be consulted here too, particularly in his 2015 oral dissent in Whole Women’s Health v. Jackson, a Texas abortion case. Although there was no dissenting opinion written in Whole Women’s Health, Alito built upon the concurring opinions to gain time to speak against the decision. As Justice Scalia once noted, dissents and concurrences have “little difference” between them. And dissents from the bench are adaptable—justices have room to develop their constitutional arguments beyond the text of written slip opinions.
The power of dissents to generate ardor amongst the public and provide persuasive authority for a future Court to assess is best expressed in the words of Chief Justice Charles Hughes in 1936:
“A dissent in a court of last resort 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.”
If this is true, then oral dissents are the command of that brooding spirit, and of our posterity, all at once.
Unfortunately, the only reason dissents from the bench fell out of practice was COVID-19. But other COVID-risky practices that were done away with in 2020 have found their way back to the Court—the justices even returned to the chamber this term. Some chose to wear masks, some didn’t. But they were all there, and all very capable of delivering dissents that could illustrate to the public that they consider the gravity of their decisions as they form them. The Court has given no formal indication as to why oral dissents were not brought back. The closest public assets to oral dissents are the PDF file dumps of the written opinions themselves.
I often imagine that oral dissents would have punctuated many of the landmark cases that landed in June. There were fundamental changes in the legal framework of abortion, gun rights, qualified immunity, climate change policy, and more.
In a Dobbs oral dissent, we could've seen a justice emphasize the role of the Court in recognizing the way the law plays out on the ground, not just the way the law behaves on paper—and then the Court's real role in that process. Justices Sotomayor, Kagan, and Breyer would have something to show for their efforts beyond the pen.
Then there is Justice Gorsuch in Oklahoma v. Castro-Huerta, who notably opposed the conservative majority and Justice Kavanaugh’s majority opinion with a ferocious dissent. The Court ruled 5-4 in Castro-Huerta that the federal government and the state of Oklahoma both have jurisdiction to “prosecute crimes committed by non-Natives against Natives on Native American land.” This significantly altered the McGirt v. Oklahoma ruling in 2020, which expressed that the state couldn’t prosecute crimes committed by or against Oklahoman tribal members in established reservations.
Gorsuch, who has consistently ruled in favor of tribal sovereignty, had sharp words for the Court in his Castro-Huerta dissent:
“Today the Court rules for Oklahoma. In doing so, the Court announces that, when it comes to crimes by non-Indians against tribal members within tribal reservations, Oklahoma may “exercise jurisdiction.” But this declaration comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority. Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom.”
Now imagine the sight of Kavanaugh announcing the majority’s view in Castro-Huerta, and his conservative colleague Gorsuch ripping into it with those words. For journalists to see and the people to hear Gorsuch follow another conservative’s viewpoint with such a rebuke would cut against notions of the Court being a cabal of partisan hacks. Theater or not, I see no doubt that the public would take interest and see value in this.
If people resonate with these moments, it isn’t a stretch to understand the Court’s decision making as a complex push and pull influenced by passionate dissents, made stronger when read aloud in the public’s gaze. And if the Court wants any hope of legitimacy endowed by the people, they ought to know that the people’s reception of the laws—meaning how the laws change their lives—are part of the conversation. The justices who authored the most impactful rulings in this term deserve to have light shone upon them, but not just in the form of op-eds and protests. The sound and sight of their fellow justices tilting the beam toward them and demanding some truth would show that the Court is aware of its need to be accountable.
More politics in a policitized institution?
There’s a fine argument to be made about the theater of oral dissents and the danger of injecting more “politics” into an increasingly politicized institution. Indeed, at no time in recent memory has the Court ruled this conservatively—look to the vote splits this term, which were mostly at 6-3 for the first time in decades. Would allowing justices to speak out about this new ideological tilt in an official manner be counterproductive?
Hardly, and I say this with more consideration than I might seem to. It’s true that the act of reading a dissent or going off the cuff to cut against the majority could seem political. But the issue of being too political is not nearly as damaging as being too careless about how the law really shapes things. The people have made it clear they don’t find the Court’s direction compelling. Regardless of whether the Court takes the people’s interest into account, it seems that perceptions may be changing, reflecting a growing belief that the Court is unaware of the people’s reality beyond their interest. People may not perceive the justices to be putting in much effort beyond issuing lengthy opinions that were politically predetermined. There will always be Courts with ideological differences and conflicted jurisprudence. The more pressing issue to address is the perception that all the Court has to fight off ideological domination are written opinions and prompt retreats to silence in July.
Oral dissents, political or not, allow some justices to express that they do care about how their rulings shape people’s lives. There are not only considerations of legal theory at play here. At least, there shouldn’t be. I find the words of the late Northwestern Law Prof. Anthony D’Amato to be salient here:
“The only reasonable way for a court to interpret a statute is to interpret it in light of the context of justice in which it is designed to play a part. In particular, courts should not interpret statutes literally if literal interpretation would do violence to the dictates of justice. For it is only a human concession to the public interest to assume that rational adults are entitled to interpret statutes as if they are written against a societal background of justice, and not as if they are disengaged from all social and human considerations (like a computer program).”
If the role of the justices is not merely to conjure up opinions, slide them to the Court’s opinion site, avert their eyes to the madness that follows, and hover back to their chambers, then oral dissents are a most welcome practice.
To close
I don’t write here with the naive assumption that oral dissents will automatically yield for the Court trust from the public, or even the public’s respect. But the Court no longer has leverage. The jig is up on Chief Justice Roberts’s refrain that the Court remains internally strong—in fact, he had to lobby against the Dobbs opinion himself, despite fiercely opposing Roe as it came to pass. Roberts knew that the Court had wider considerations at play than legal theory in Dobbs. Justices Alito, Thomas, Kavanaugh, Gorsuch, and Barrett did not.
And so the Court is in recess, searching for a way to take the first step up a long staircase to any semblance of public trust. Reinstating oral dissents are a small, but strong step towards that ideal.