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Wednesday, June 26, 2013

Respectfully, up yours!

I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.

So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!

It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore.  One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)

Posted by Dan Markel on June 26, 2013 at 05:16 PM in Constitutional thoughts, Current Affairs, Dan Markel | Permalink

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Comments

Much was made in Bush about the dissenters (Ginsburg and Souter, primarily) not saying "respectfully". Nothing I ever read into much.

Posted by: Howard Wasserman | Jun 26, 2013 5:36:18 PM

Justice Ginsburg always ends with "I dissent." I cannot recall one in which she uses the term "respectfully." Perhaps because the tone of her argument is always respectful, she has no need to state it.

Posted by: Barbara Burke | Jun 26, 2013 6:09:22 PM

Interestingly, a student note published in the Harvard Law Review in 2011 examines the frequency of "respectfully" dissenting from 1930-2010, including a distribution by Justices. You can read it here:
http://www.harvardlawreview.org/media/pdf/vol124_consensus_to_collegiality.pdf

Posted by: Adam Shinar | Jun 26, 2013 7:33:44 PM

Adam, thanks for that great link. Just skimmed the piece, which offers very interesting data. Just under 6% of the dissents during the Roberts era's first five terms have 'assertive' dissents.

I also quite like this line about dissents: "To make one’s dissent known is, in Chief Justice Hughes’s words, to appeal 'to the
brooding spirit of the law, to the intelligence of a future day.'”

Posted by: Dan Markel | Jun 27, 2013 5:11:23 PM

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