In Chief Justice Roberts’ first year at the Court, notably also Justice O’Connor’s last Term on our bench, it appeared that the new Chief’s hope for greater unanimity might be realized. In the 2005–06 Term, 45 percent of the cases we took up for review were decided unanimously, with but one opinion for the Court, and 55 percent were unanimous in the bottom-line judgment. With Justice O’Connor no longer at our Conference table, that high level of unanimity has declined somewhat, but it is still impressive. This Term, 2012–13, for example, we agreed on the bottom line judgment in 38 (49 percent) of the 78 opinions issued during the Term. In 22 cases (28.2 percent), the Court issued only one opinion that all Justices joined in full. In contrast, the Court divided 5–4 in 23 (29 percent) of our post-argument dispositions.
Ordinarily, when Court decisions are announced from the bench, only the majority opinion is summarized. Separate opinions, concurring or dissenting, are noted, but not described. A dissent announced orally, therefore, garners immediate attention. It signals that, in the dissenters’ view, the Court’s opinion is not just wrong, but, to borrow Justice Stevens’ words, “profoundly misguided.” As an example, I will read my June 24 statement from the bench in the University of Texas affirmative action case. [Justice Ginsburg then read her dissenting bench announcement in Fisher v. University of Texas; see p. 296.]
Our practice of revealing dissents is hardly universal. In the civil law tradition that holds sway in Europe, and in countries once controlled by a continental European power, most multi-judge courts issue a collective judgment, cast in stylized, impersonal language. The judgment writer is neither named nor otherwise identifiable. Disagreement, if it exists, as inevitably it sometimes does, is not disclosed.
The British common law tradition lies at the opposite pole. [For a description of that “opposite pole,” in which each judge authors an individual opinion, see Speaking in a Judicial Voice, p. 228.] Our system occupies a middle ground between the continental and the British traditions.
No doubt, as Chief Justice Roberts suggested in his confirmation hearings, the U.S. Supreme Court speaks with greater force, and provides clearer guidance, when it is not fractured. And I agree that a Justice, contemplating publication of a separate writing, should always ask herself: is this dissent or concurrence really necessary? Consider the extra weight carried by the Court’s unanimous 1954 opinion in Brown v. Board of Education. All nine Justices signed one opinion making it clear that the Constitution does not tolerate legally enforced segregation in our nation’s public schools.
Even for dissenters, I believe, one opinion speaks more impressively than four. In the rush to judgment in Bush v. Gore (2000), for example, there was no time to compose a single dissent, so the press and public had to read four separate, rather long, dissenting opinions to discern our views. Contrast the single opinion Justice Stevens composed expressing the view of all four in the minority in a case decided at the start of 2010, Citizens United v. Federal Election Commission. (The Court’s 5–4 judgment in that case, you will recall, nullified a key constraint on corporate spending to elect or defeat candidates for public office.)
There was a repeat the next Term in Arizona Free Enterprise Club v. Bennett. A five-member majority invalidated Arizona’s attempt to deter exorbitant campaign spending by gearing the amount a publicly financed candidate could receive to the amount his or her privately financed opponent spends. Justice Kagan wrote powerfully for the four dissenters. And this Term, I wrote for four, dissenting from the Court’s decision to upset the preclearance procedure Congress prescribed in the Voting Rights Act. [See Justice Ginsburg’s dissenting bench announcement in Shelby v. Holder, p. 292.]
On the utility of dissenting opinions, I will mention first their in-house impact. My experience confirms that there is nothing better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation. An illustration: The Virginia Military Institute case, decided by the Court in 1996, held that VMI’s denial of admission to women violated the Fourteenth Amendment’s Equal Protection Clause. I was assigned to write the Court’s opinion. [See Justice Ginsburg’s bench announcement of the majority opinion in United States v. Virginia, p. 150.] The final draft, released to the public, was ever so much better than my first, second, and at least a dozen drafts more, thanks to Justice Scalia’s attention-grabbing dissent, which he adjusted to meet each of my responsive circulations. In the Term’s waning days, we agreed it was time to say Basta!
Sometimes a dissent is written, then buried by its author. An entire volume is devoted to the unpublished, quite extensive dissenting opinions written by Justice Louis Dembitz Brandeis during his 1916 to 1939 tenure on the Court. He would suppress his dissent if the majority made ameliorating alterations. (A few of my favorite separate writings remain unpublished for similar reasons.) And even when Brandeis gained no accommodations, he would retract his dissent if he thought the Court’s opinion was of limited application and unlikely to cause real harm in future cases. He once explained: one must husband resources; dissenting too often will weaken the force of a dissent when it becomes important to write.
Constitutional law scholar Paul Freund, who clerked for Justice Brandeis in 1932, recalled his memory of the new Justice who came on board that year, Benjamin Nathan Cardozo. Freund “was surprised . . . how often Cardozo was in sole dissent in the vote at conference.” Freund “was also struck by how preponderant [Cardozo’s] course was of suppressing a dissent so that an opinion would come down unanimous. . . .” (We call dissenting votes so held back “graveyard dissents.” They are buried.)
The most determined graveyard dissenter may have been Chief Justice Taft, who served on the Court from 1921 until 1930. His feeling about dissent resembled Thomas Jefferson’s. Most dissents, Taft thought, are “a form of egotism,” an expression of vanity. In many cases, he suppressed his dissent to, in his words, “stand by the Court and give its judgments weight.” In his eight and a half years on the Court Taft stayed on the dissent side only 17 times, wrote only 3 dissents himself, and joined the majority in nearly 200 cases in which his initial vote was in the minority.
Although graveyard dissents are hardly as common as Chief Justice Taft thought they should be, on occasion, a dissent will be so persuasive that it attracts the votes necessary to become the opinion of the Court. That happens once or twice, no more than three times each Term. A former clerk to Justice Douglas tells this story. Douglas had circulated an opinion and was awaiting joins. Late on a Friday afternoon, Justice Harlan sent around his dissent. The clerk asked Justice Douglas if he wanted to make responsive changes. Douglas was about to depart for a hiking weekend. Without reading the Harlan dissent, Douglas told the clerk, “It won’t make a difference,” and left town. When Douglas returned to chambers Monday morning, he found to his chagrin that he had lost his majority. The Harlan dissent has become the opinion of the Court.
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. Whenever I write in dissent, I aim for a repeat of that experience. Much more often than not, the conference vote holds, but hope springs eternal!
Are lasting rifts sparked by sharply worded dissents? Justice Scalia spoke to that question nicely. He said: “I doubt whether any two [J]ustices have dissented from one another’s opinions any more regularly, or any more sharply, than did my former colleague Justice William Brennan and I. I always considered him, however, one of my best friends on the Court, and I think that feeling was reciprocated.” (I might say something similar about my fondness for Justice Scalia.)
Describing the external impact of dissenting opinions, Chief Justice Hughes, in a book about the U.S. Supreme Court published in 1936, famously said: “A dissent in a court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting ju
dge believes the court to have been betrayed.” Dissents of this order occur in constitutional cases in which the only corrective is an overruling Court decision or a constitutional amendment. Congress cannot fix such errors.
A classic example of an opinion “appealing to the intelligence of a future day” is Justice Benjamin Curtis’ dissent from the Court’s notorious 1856 decision in Dred Scott v. Sandford. The Court held, 7–2, in Dred Scott that people of African descent whose ancestors were brought to the United States as slaves could never become citizens of the nation. Accordingly, an African-American could not invoke a federal court’s diversity-of-citizenship jurisdiction to assert that, once brought to a free state, he was no longer his master’s property. Justice Curtis disagreed, as did Justice McLean. Curtis wrote an opinion remarkable for its time. At the founding of our nation, he observed, African-Americans were “citizens of at least five States, and so in every sense part of the people of the United States,” thus “among those for whom and whose posterity the Constitution was ordained and established.”
Another example is the first Justice Harlan’s dissent in the Civil Rights Cases. The Court, in that 1883 decision, invalidated a federal law entitling “citizens of every race and color” to the “full and equal enjoyment” of modes of transportation and places of public accommodation. If the Thirteenth and Fourteenth Amendments are to be enforced “according to the intent with which . . . they were adopted,” Justice Harlan wrote, “there cannot be, in this republic, any class of human beings in practical subjection to another class.”
Dissents of this order, Justice Scalia rightly commented, “augment rather than diminish the prestige of the Court.” He explained: “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting . . . to look back and realize that at least some of the [J]ustices saw the danger clearly and gave voice, often eloquent voice, to their concern.”
Though Justice Scalia would not agree with me in these further examples, I would rank as dissents “appealing to the intelligence of a future day” Justice Stevens’ dissent in Citizens United and Justice Kagan’s in Arizona Free Enterprise, both disagreeing with a five-member majority’s view that the First Amendment blocks controls on exorbitant spending in campaigns for public offices. I might also so rank my June 25, 2013 dissent in the Voting Rights Act case.
Another genre of dissent looks not to a distant future day, but seeks immediate action from the political branches of government—Congress and the president. Dissents of this order aim to engage or energize the public and propel prompt legislative overruling of the Court’s decision. A fit example, perhaps, is the dissent I summarized from the bench in 2007 in Ledbetter v. Goodyear Tire & Rubber Co. [See Justice Ginsburg’s dissenting bench announcement, p. 287.] The plaintiff, Lilly Ledbetter, worked as an area manager at a Goodyear tire plant in Alabama; in 1997, she was the only woman Goodyear employed in such a post. Her starting salary (in 1979) was in line with the salaries of men performing similar work. But over time, her pay slipped. By the end of 1997, there was a 15 to 40 percent disparity between Ledbetter’s pay and the salaries of the fifteen men doing essentially the same work. A federal jury found it “more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex.” The Supreme Court, dividing five to four, nullified the verdict. The majority held that Ledbetter had filed her claim too late.
It was incumbent on Ledbetter, the Court said, to file charges of discrimination each time Goodyear failed to increase her salary commensurate with the salaries of her male peers. Any annual pay decision not contested promptly (within 180 days), the Court ruled, became grandfathered, beyond the remedial reach of Title VII (our principal law prohibiting employment discrimination).
The Court’s ruling, I observed, ignored real-world employment practices that Title VII was meant to govern: “Sue early on,” the majority counseled, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience, and when you may not know that men are receiving more for the same work. (Of course, you would likely lose such a premature, less than fully baked challenge.) But if you sue only when the pay disparity becomes steady and large, your now-winnable case will be blocked as untimely. Heads, the employer wins; tails, the employee loses. That situation, I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our nation’s workplaces. “The ball is in Congress’ court,” I wrote, “to correct [the Supreme] Court’s parsimonious reading of Title VII.”
Congress responded within days of the Court’s decision. Bills were introduced in the House and Senate to amend Title VII to make it plain that each paycheck a woman in Ledbetter’s situation received renewed the discrimination and restarted the time within which suit could be brought. Early in 2009, Congress passed the Lilly Ledbetter Fair Pay Act, and President Obama signed the corrective measure as one of his first actions after taking office.
I had a sense of déjà vu last Term in the Wal-Mart case [Wal-Mart v. Dukes (2011)]. The issue on which the Court divided 5–4 concerned the plaintiffs’ satisfaction of the threshold “commonality” requirement for class action certification. The women’s complaint, their chances of being hired for, or promoted to, management-level posts were distinctly lower than the chances of male applicants for supervisory posts. No “common” question of law or fact united the class, the Court ruled, because the plaintiffs were complaining about millions of discrete employment decisions.
I observed, in dissent, that managers had wide discretion in deciding on pay and promotions. The commonality requirement was satisfied, I tried to explain, by this phenomenon: managers were overwhelmingly male and they tended, perhaps unconsciously, to favor people who looked like themselves. As a graphic example, I noted that women did not appear in numbers in symphony orchestras until a curtain was dropped, so that the auditioners could not tell whether the person auditioning was male or female. (To make certain there would be no cues, auditioners were required to take off their shoes.)
To sum up, although I appreciate the value of unanimous opinions, I will continue to speak in dissent when important matters are at stake. I stress important matters because I try to follow Justice Brandeis’ counsel. He cautioned that in most matters of statutory interpretation, “it is more important that [the applicable] rule of law be settled than that it be settled right.” One might put in that category ambiguous provisions of complex legislation—for example, the Internal Revenue Code or the Employee Retirement Income Security Act.
I recall, too, that Oliver Wendell Holmes, who graced the Court from 1902 until 1932, was called “the Great Dissenter.” In fact, he dissented less often than most of his colleagues. As Holmes put it, “I sometimes endorse an opinion with which I do not agree, I acquiesce, I’ll shut up.” But when he elected to dissent, he did so to great effect.
On when to acquiesce in the majority’s view, and when to take an independent stand, Arizona lawyer and legal scholar, John Frank, wrote in 1958 of the model Brandeis set:
Brandeis was a great institutional man. He realized that . . . random dissents . . . weaken the institutional impact of the Court and handicap it in the doing of its fundamental job. Dissents . . . need to be saved for major matters if the Court is not to appear indecisive and quarrelsome. . . . To have discarded some of [his separate] opinions is a supreme example of [Brandeis’] sacrifice to [the] strength and consistency of the Court. And he had his reward: his shots [were] all the harder because he chose his ground.
In the years I am privileged to serve on the Court, I pray that I will be granted similar wisdom in choosing my ground.
Bench Announcement
Ledbetter v. Goodyear Tire & Rubber Co.
Tuesday, May 29, 2007
Lilly Ledbetter worked for Goodyear for nearly two decades. At the outset, her pay was the same as others doing the same work, but as the years passed
, a pay gap between Ledbetter and her male colleagues emerged and grew. In 1998, shortly after retiring, Ledbetter sued Goodyear for sex discrimination in violation of Title VII of the Civil Rights Act of 1964. When the case reached the Supreme Court, Justice Samuel Alito, writing on behalf of a five-Justice majority, ruled that Ledbetter had filed her lawsuit too late. In her dissent, which she summarized from the bench, Justice Ginsburg argued that the Court’s interpretation of Title VII was too narrow and encouraged Congress to take corrective action. It ultimately did so, passing the Lilly Ledbetter Fair Pay Act in 2009.
Four members of this Court, Justices Stevens, Souter, Breyer, and I, dissent from today’s decision. In our view, the Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination. Today’s decision counsels: sue early on, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. (Of course, you are likely to lose such a less than fully baked case.) If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing too late. That situation cannot be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our nation’s workplaces.
Lilly Ledbetter, the plaintiff in this case, was engaged as an area manager at a Goodyear Tire and Rubber plant in Alabama in 1979. Her starting salary was in line with the salaries of men performing similar work. But over time, her pay slipped in comparison to the pay of male employees with equal or less seniority. By the end of 1997, Ledbetter was the only woman left working as an area manager and the pay discrepancy between Ledbetter and her fifteen male counterparts was stark: Ledbetter’s pay was 15 to 40 percent less than every other area manager.
My Own Words Page 28