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The art of throwing shade in a SCOTUS dissent

Reuters/Erin Schaff
Just(ices) say no.
By Ephrat Livni
Published Last updated This article is more than 2 years old.

The Supreme Court is an extremely cordial and formal workplace. The justices have rules for almost everything they do, from who has to pick up a ringing phone when they’re meeting (the junior justice) to who assigns opinions (the chief) to when to shake hands and with whom (all of them, whenever they have a conference or hear oral arguments).

Still, there is a time and place for shade, even at the high court. In dissenting opinions, justices who disagree with the majority’s decision lay out the reasoning behind their disagreement—and throw in the occasional jab at their colleagues.

The current court term ends this month, and there are still 16 cases left to be decided in the coming week or so. Contentious matters will no doubt lead to deliciously feisty dissents. In the four cases decided this week, for example, there were spirited objections worth noting. Take Sonia Sotomayor’s June 17 dissent in Manhattan Community Access Corp. v. Halleck (pdf), which begins, “The Court tells a very reasonable story about a case that is not before us. I write to address the one that is.”

The community access case is about a private company that runs a public cable access channel for the city of New York. It barred two producers who’d been critical of it from accessing the channel. The producers argued that this was a free speech violation because the private company in this context was operating as a public entity, standing in for the city. As such, it was a state actor beholden to First Amendment law.

The majority disagreed, concluding that the company wasn’t subject to the same constitutional constraints as the city. Brett Kavanaugh wrote the opinion, joined by John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch.

Sotomayor responded, “The majority swings hard at the wrong pitch.” She was joined in her dissent by Ruth Bader Ginsburg, Elena Kagan, and Stephen Breyer.

They contend that their colleagues mistakenly likened the cable company’s role in the case to any old business subject to government regulation (which is all businesses), ignoring the fact that the channel belongs to the city and exists for the public. The private company was substituting the city, not merely serving it. “To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is an independent food seller who just happens to be highly regulated by the restaurant’s owners,” Sotomayor wrote.

She accused the majority of being “misguided” and ignoring reality and the court’s precedent, concluding, “I respectfully dissent.”

Registering displeasure

That final formulation is yet another court formality. Justices always dissent respectfully. Often, however, what precedes the last statement indicates they don’t actually respect their colleagues’ decision at all.

The more sharply justices articulate their counterarguments, the more likely they are to be remembered, according to a study on SCOTUS dissents published last year. An algorithmic analysis of citations over time revealed that minority opinions are rarely discussed in later cases. Only 17% of the dissents written between 1937 and 2014 have ever been cited by a subsequent majority opinion.

But the dissents that are cited tend to share a common feature—unexpected language. They’re sharp, funny, or harsh. “Our results indicate that dissents using more negative emotion and more distinctive words are cited more in future majority opinions,” the researchers wrote. “Bland dissenting opinions may fail to rile one’s colleagues, thereby preserving a sense of collegiality […] but they are also impotent dissents.”

The late justice Antonin Scalia understood this. He once explained, “My tone is sometimes sharp. But I think sharpness is sometimes needed. […] Especially in my dissents.” In US v. Windsor in 2013, he called the majority’s rationale for striking down the Defense of Marriage Act as “legalistic argle-bargle.”

Perhaps most famous of the accusations made in recent dissent history was written in the 2015 case King v. Burwell, about the Affordable Care Act. There, Scalia accused his colleagues of engaging in “interpretive jiggery-pokery.” The colorful phrasing won him numerous headlines, which is really the best initial response a dissenting justice can hope for when on the losing side of an argument.

Time will tell

Dissents aren’t written just to express displeasure, however, or to grab headlines. As Ginsburg has said, “I like to think most of my dissents will be the law someday.” To improve the chances of that, justices must make their colleagues uncomfortable and hope that history proves them right in the future.

It does happen. In Plessy v. Ferguson, the infamous 1896 case that upheld the constitutionality of racial segregation laws, creating “separate but equal” public accommodations, justice John Marshall Harlan dissented. His most memorable phrase, “Our constitution is colorblind,” is still cited to this day. Harlan reminded his colleagues, “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” He chided the majority, stating:

We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with the state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done.

Harlan died in 1911. Brown v. Board of Education, which integrated public schools, was not decided until 1954. Yet his early opposition to segregation in Plessy was on the record, and it helped light the way for change. Today, legal scholars consider Harlan’s dissent in Plessy his most important contribution in 34 years on the high court.

Similarly, the three famously “fiery dissents” in Korematsu v. US, a 1944 case about the internment of Japanese-Americans during World War II, remain relevant. Last year, both the majority and dissenters had cause to consider Korematsu in Trump v. Hawaii (pdf). The majority upheld Donald Trump’s travel ban on six predominantly-Muslim nations and some Venezuelans but referred mournfully to the Korematsu opinion that allowed Japanese internment for alleged national security reasons as “gravely wrong.” They ultimately officially overturned that offensive precedent, which had long been considered bad law.

The dissenters, however, argued that the majority’s rationale for Korematsu in 1944 was actually the same being used in Trump v. Hawaii. “In the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another,” Sotomayor wrote.

Sadly, even with Korematsu overruled, the dissents in that dated case still inform the current state of affairs. Today, Americans are debating whether Immigration and Customs Enforcement holding centers can really be called “concentration camps” if they aren’t in every sense exactly like the Nazi-style concentration camps that made this term world famous. In 1944, while the Nazis were still active, Justice Owen Roberts answered that question. He referred to the American government’s Japanese internment camps as “concentration camps” in his Korematsu dissent.

In another case this month, Gamble v. US (pdf), there was a spirited dissent by Gorsuch (Ginsburg objected separately) that invoked both Plessy and Korematsu. Gorsuch, who is conservative and whose appointment to the high court seriously concerned liberals, wrote a stylish objection to the majority’s decision that warned against government tyranny in the criminal justice system and stood up for the poor—it’s a dissent so simultaneously harsh, snarky, and thoughtful it almost brought this former public defender to tears.

For that case, the justices had to decide whether or not to close a loophole prosecutors use to try one crime twice, despite constitutional double jeopardy protections. The Fifth Amendment provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” But the “separate sovereign” exception allows multiple prosecutions stemming from a single offense if they are initiated by certain different jurisdictions, like the state and the feds.

The majority concluded that the separate sovereign exception was valid and didn’t offend double jeopardy protections. Gorsuch skewered them. “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy.” He explains sarcastically:

My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other.

Neatly and thoroughly, Gorsuch laid out the long history of global double jeopardy protections dating back to ancient Greece. He attacked the exception in question and mocked his colleagues’ latest interpretation of the law. “None of that offends the Constitution’s plain words protecting a person from being placed ‘twice . . . in jeopardy of life or limb’ for ‘the same offense.’ Really?”

Gorsuch warned that the court’s job was not to make prosecutors’ work easier. He reminded colleagues of previous wrongheaded decisions, including Plessy and Korematsu, that show resting on precedent sometimes guarantees injustice, rather than orderly court decisions. And he predicted who will suffer the most from the majority’s decision in Gamble, writing:

When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is ‘the poor and the weak,’ and the unpopular and controversial, who suffer first—and there is nothing to stop them from being the last.

The rhetorical flourishes may well make it a dissent memorable enough to be cited in a future majority ruling overturning the “separate sovereign” exception someday. But the objection concludes the same way they all do: “I respectfully dissent.”

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