The High Court
By Robert Barnes

The ‘intensifying’ art of the dissent

Another was based on an understanding of the law “that is nowhere to be found in the annals of Anglo-American jurisprudence.”

A third ruling was so vague in its prescriptions that even the person to whom the decision was directed “would have no idea — no idea” what was required of him.

Who dares to so harshly bad-mouth the thoughtful and hardworking members of the Supreme Court?

Respectively: Justice Antonin Scalia (“supremacy”), Justice Ruth Bader Ginsburg (“egregiously”), Justice Elena Kagan (“betrayal”), Justice Samuel A. Alito Jr. (“nowhere”) and Chief Justice John G. Roberts Jr. (“no idea”).

It wouldn’t take much effort to find similarly scratchy statements from the other four justices.

Everybody’s a critic of the Supreme Court — and none so much as the justices themselves.

Thunderous dissents are a staple of Supreme Court life, like oral arguments and deciding all the big cases at the end of the term. The fusillade of objection to the majority opinion usually, but not always, concludes with the message that a justice “respectfully dissents.”

The language this term was probably no more vitriolic than in previous ones, and there were fewer cases in which there even was a dissent. According to the analysts at SCOTUSblog, the court was unanimous in 49 percent of the cases argued before it, the highest percentage in the last five years.

But two dissents at the end of the term drew much attention: Scalia’s blazing objection to the majority’s determination that the Defense of Marriage Act was unconstitutional and Ginsburg’s detailed response to Roberts’s opinion for the majority striking a key portion of the Voting Rights Act. It was 13 pages longer than what Roberts wrote.

And a new study, with the irresistible title of “When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme Court,” details how the members step up the stridency of their language when they are on the losing side of the argument.

Dissents, of course, play an important role in the court’s jurisprudence. The justices like to point out that they are the only public officials who have to explain the reasoning behind their votes, signing on to the court’s majority opinion or a dissent.

Moreover, Ginsburg said in a speech at the end of 2009 that about four times a term, what starts out as a dissent is so well reasoned that it convinces enough justices to become the majority opinion.

“I had the heady experience once of writing a dissent for myself and just one other justice; in time, it became the opinion of the court from which only three of my colleagues dissented,” she told the Harvard Club of Washington.

And dissents can make the majority opinion better, Justice Stephen G. Breyer told the Aspen Institute Justice and Society Program earlier this month. Because both the majority opinion and the dissent circulate among the justices, Breyer said, the justice writing the majority opinion will change to accommodate the reasoning.

“You never see the best points the dissents make, because they’ve been written out of the majority [opinion] so that there is no need to make that dissenting point anymore,” Breyer said.

And with changing personnel — as the increasing conservatism of the current court has shown — what were once dissents on issues such as abortion, campaign finance regulation and affirmative action can become the majority view.

What the public is familiar with are what Breyer called the “failed dissents” — the ones that didn’t persuade the majority and often act as a stinging retort.

Scalia is widely seen as the master of the genre; no other justice has had a collection of dissents compiled in a book. He has often spoken of the liberation of writing just for himself instead of accommodating at least four other justices to write the majority opinion.

His blistering critique of Justice Anthony M. Kennedy’s majority opinion in the same-sex marriage case that ended the term was typical.

The justice blasted the arrogance of the majority in overturning a key part of the 1996 DOMA law and dismissed what he called Kennedy’s vague reasoning for the decision as “legalistic argle-bargle.”

“Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the court at its word and distinguish away,” Scalia wrote.

But the new study — involving decisions made before Justices Sonia Sotomayor and Kagan joined the court — found that all justices ratchet it up a notch when writing dissents.

Two professors, Lance N. Long of Stetson University College of Law and William F. Christensen of Brigham Young University, studied the justices’ reactions to what the authors called “argumentative threat” and hypothesized that “when faced with an argument that a legal writer believes — or knows — she is likely to lose, the writer will tend to write in a style that uses more intensifiers.”

They searched through hundreds of court decisions for those intensifiers — words such as “clearly,” “absolutely” and “undoubtedly.” They found them more often in dissents than in majority opinions.

“The increased use of intensifiers and the use of long sentences and words could be a subconscious attempt at showing the ‘strength’ of the dissenter’s argument,” Long and Christensen wrote.

Not surprisingly, Scalia was the leader in their study, and they found conservatives more likely to use the words than liberals. This could indicate a cultural difference, they said, or simply reflect that liberals “have had — to their chagrin — more practice in writing measured dissents.”

The professors also applied a “Threat-Related Intensifier Rate Increase” — which they also called the “Jekyll-Hyde index” — to identify the justice who showed the greatest variance in the use of intensifiers when writing majority opinions as opposed to dissents.

It was Kennedy, the justice who has become used to being the deciding vote when the court is split. He used more strident language when dissenting, the professors found.

Said Christensen in an interview: “Perhaps he needs a little more experience at losing.”

 
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