The announcement, a few weeks ago, that SCOTUS was up and running remotely no doubt reassured people that all was normal in the highest Court of the land. However, this isn’t quite true, reports Mark Walsh in the ABA Journal. There’s something missing when dissents read from the bench can no longer occur because there’s no shared bench to read from:
It’s true that only a few hundred people in the courtroom get to hear opinion announcements or dissents live. The announcements are recorded, but the court does not post them later the same week the way it does with recordings of oral arguments. Court buffs must wait for months after the end of a particular term, when Oyez.org puts the recordings up on its website and provides unofficial transcripts.
But some journalists and legal analysts listen carefully to the summaries and oral dissents, which can crystallize key points.
“We’re missing out by not being able to hear from the justices,” says Timothy R. Johnson, a professor of political science and law at the University of Minnesota who has studied oral dissents. Bench announcements—whether it’s the majority opinion, an oral dissent or the occasional concurrence summarized from the bench—“are signals to the elected branches and to the larger public,” he says.
A classic example is Justice Ginsburg’s 2007 dissent in Ledbetter v. Goodyear Tire & Rubber Co., in which she read from the bench to call on Congress to reverse the majority’s narrow interpretation of the timeliness of claims under federal employment discrimination law. Congress passed the Lilly Ledbetter Fair Pay Act less than two years later.
“A dissent presented orally … garners immediate attention,” Ginsburg said in a 2007 lecture. “It signals that, in the dissenters’ view, the court’s opinion is not just wrong, but grievously misguided.”
Our natural urge to interact, to use drama to emphasize a point, can be lost when the remote version of our institutions discards, accidentally or because it has to, some feature of institutions’ work. It’s something to consider and work hard to retain, even if the current Senate is disinclined to pay attention to the country’s business.
