The 9 Best Supreme Court Dissents of the Term

By Andrew Cohen

When it comes to the highest court in the land, it's worth taking a second look at the minority opinions

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It's the end of another term at the United States Supreme Court, which means it's time for a ritual as eternal as Washington's cherry blossoms (only far less beloved). Now comes the annual rite of ponderosity known as the "End-of-the-Term" review, wherein glassy-eyed courtwatchers like me try to answer questions like: What are the latest trends on the High Court? What can be divined from the calculi of the opinions? Which justices are up? Which are down? What does it all mean?

With the exceptions proving the rule, it is still a very conservative court, as conservative as it has been in three quarters of a century

Some years, there are profound answers to these questions. For example, it became clear last year, in the wake of a term which saw the Citizens United ruling on campaign finance reform, that Justice Samuel Alito is far more conservative in his jurisprudence than was the justice he replaced, Sandra Day O'Connor. This has had enormous ramifications on the Court's political bent. Alas, no such clarity or shift emerged from the current Term. There were no blockbuster decisions. There were no retirements. And, so far as we can tell, the justices weren't at each others' throats at any point along the way.

In the absence of any such drama (just be patient, the next Court term promises to be a doozy, with cases involving same-sex marriage, immigration law, and the Affordable Care Act all perhaps on the docket), I thought I'd do something different this year for my Supreme Court wrap-up piece. It'll be shorter on analysis and longer on nostalgia. And I've even come up with a theme!

But first, and quickly, the analysis. Here are nine things we've learned -- or, importantly, have been reminded of -- since the first Monday in October.

1. A baseline for all discussion about the Court: With the exceptions proving the rule, it is still a very conservative court, as conservative as it has been in three quarters of a century. No one should be fooled into thinking otherwise. When a Reagan appointee, Justice Anthony Kennedy, is considered the Court's "center" -- and accordingly the only hope for progressive cases and causes -- there just isn't any room for debate on the matter. P.S. Imagine the fight that will take place over his successor!

2. There is a dogged majority on the Court -- all conservatives -- who continue to bend over backward to help corporations at the expense of individuals. We saw it earlier this month in the Court's Walmart class-action ruling. And we saw it earlier this year in the Court's arbitration ruling, which devastated the rights of consumers. Not since the 1930s, in fact, has the Court been so ardently pro-business.

3. When it comes to ideological jurisprudence, Justice Clarence Thomas is not Justice Antonin Scalia and Justice Kagan is not Justice Sotomayor. In fact, no two justices can be paired together under that criteria, even Chief Justice Roberts and Samuel Alito, the products of the presidency of George W. Bush. Every justice's duty is to the law, but every justice's soul's his (or her) own (as Shakespeare might have put it).

4. As you would expect from any group of nine brilliant people who have wildly different views of history and the law, the Court is often divided. Twenty-percent of its rulings this term, Scotusblog tells us, were resolved by a 5-4 vote (with Justice Kennedy almost always in the majority). On the other hand, these folks know how to get along, too. No less than 48 percent of the Court's rulings this term were unanimous. Kumbaya!

5.The jury, you could say, is still out on the newest justice, Elena Kagan, especially since she recused herself from dozens of cases because of her prior work as U.S. Solicitor General. We have learned that she can write a terrific dissent (see below) but not a whole lot else. She'll have fewer recusals next term and then fewer still the term after that. It will take a while for the tea leaves to rise up in the cup.

6. Very little about the 2010-2011 term, in particular, gives us much guidance toward predicting how the justices may rule on the big cases coming their way next term. The exception was made by Justices Thomas and Scalia, who made a specific point about their view of the scope of the Commerce Clause (and thus the legal legitimacy of the Care Act) in a January dissent in a case the rest of their colleagues didn't even want to hear.

7. Justice Alito is a pouter. After the infamous (and by that I mean silly) episode at President Barack Obama's State of the Union speech in January 2010, Justice Alito conveniently decided to spend SOTU Night 2011 thousands of miles from Washington, giving his own speech in Hawaii. No doubt the folks in Fiji are scanning the White House's schedule so they can invite Justice Alito over for a snack sometime in late January 2012.

8. It's still, and always, Justice Kennedy's court. He was in the majority an astonishing 94 percent of the time and in divided cases, which is pretty much what most people care about anyway, he was in the majority 88 percent of the time. He led the Court in both categories -- he was the fifth vote in 14 of the 16 rulings this term that were decided by a 5-4 vote -- which helps explain why it always seems like the lawyers are talking to him during oral argument before the Court.

9. By contrast, Ruth Bader Ginsburg, the oldest Supreme Court justice, was in the majority the least often, both in unanimous cases and in divided ones. Interestingly, she was in the majority far less often in the 2010-2011 term than she had been in the previous three terms, a sign either that the Court is moving more to the right (my theory, based upon the Alito-O'Connor swap) or that Justice Ginsburg is moving more to the left.

There. Now for the fun part. Here are the nine best dissents from the just-completed term. I include them here because the justices often are their most true selves during their dissents. And so their writings thus give us glimpses into what they really think about a topic or an issue (as opposed to what they must agree upon to join a majority opinion). I offer them in no particular order -- but each is a must-read to help understand what this term was about.

1. Justice Kagan's pointed dissent in Arizona Christian School v. Winn, a 5-4 ruling in which the Court's majority struck down a challenge by Arizona taxpayers upset about a state law that gave tax credits for "school tuition organizations" which then funded private (and, in some cases, religious schools). And if you want another example of the way in which the newest justice talks over the heads of her colleagues to the larger audience, check out her dissent earlier this week in another Arizona case, Arizona Free Enterprise v. Bennett.

2. Justice Alito's stark dissent in Snyder v. Phelps, an 8-1 ruling in which the Court's majority recognized free speech protection for the Westboro Baptist Church and its vile message of hate and intolerance. Alone among his colleagues, Justice Alito would have allowed a crushing, multi-million dollar verdict against Fred Phelps to stand.

3. Justice Ginsburg's seething dissent in Dukes v. Walmart, a 5-4 ruling in which the Court's majority refused to recognize a class-action lawsuit brought by women, perhaps as many as 1.5 million women, seeking to sue Walmart for gender discrimination in pay and promotion. Justice Ginsburg, whose own early career in the law was famously marked by such discrimination, and who then argued against such discrimination as a lawyer, would have allowed the huge case to proceed against the huge corporation.

4. Justice Scalia's candid dissent in Sykes v. United States, a 6-3 ruling in which the Court's majority again tried to interpret a federal statute called the Armed Career Criminal Act. Justice Scalia, never known to be shy with his views about the other two branches of government, called out the gutless weasels in Congress who continue to pawn off the toughest policy choices on judges by enacting ambiguous legislation. Not enough Scalia for you? Then try his spry dissent in the California prison case, Brown v. Plata.

5. Justice Sotomayor's lonely dissent in United States v. Jicarilla Apache Nation, an 8-1 ruling in which the Court's majority ruled that the Apache Nation had no right to see government documents which related directly to the government's conduct as "trustee" of the nation. Alone among her colleagues, Justice Sotomayor stood up for the Apache Nation, writing that the majority's ruling rested on false factual and legal premises.

6. Justice Kennedy's rare dissent in Bullcoming v. New Mexico, a 6-3 ruling in which the Court's majority declared that prosecutors must do more under the Confrontation Clause of the Sixth Amendment to ensure that criminal defendants are allowed access to the expert witnesses who will testify against them. Justice Kennedy wrote that the new constitutional rule required prosecutors and their witnesses to do too much. Yes, I know. It's not exactly a whopper. But the guy only dissented five times all term and didn't write a dissenting opinion in each of those. #Winning!

7. Justice Breyer's dogged dissent in AT&T v. Concepcion, a 5-4 ruling in which the Court's majority voided a California consumer law that outlawed "class arbitration waivers" under the guise of giving deference to federal arbitration law. On behalf of the Court's progressives, Justice Breyer wrote to say that the state statute was consistent with federal law -- and reminded the majority that judges for nearly a century in American life have been ensuring some measure of fairness in contracts between huge companies and the little guy.

8. Justice Thomas' old-school, originalism dissent in Brown v. EMA, a 7-2 ruling in which the Court struck down a California law prohibiting the sale of violent video games to minors. Justice Thomas declared that the "founding generation" would not have considered the state law a violation of the rights of children. Want more vintage Thomas? Thy his robotic dissent in Turner v. Rogers, a 5-4 ruling in which the Court's majority ruled that a deadbeat dad should have been given court-appointed counsel before he was subjected to a "civil contempt" proceeding that resulted in a one-year prison term.

9. Chief Justice Roberts's dissent in VOPA v. Reinhard, a 6-2 ruling (Kagan recused) in which the Court's majority allowed Virginia officials to sue other Virginia officials in federal court. There is nothing dramatic or even particularly interesting about the chief justice's dissent. Like his colleague Justice Kennedy, Roberts did not dissent much this term and didn't write much when he did. But in the Reinhard dissent we see some of the art that Chief Justice Roberts brings to the thankless job of herding his eight fellow cats on the Court. It is a polite dissent. It does not offend. And it is designed to limit the role of the federal courts. The chief justice will be tested on each of those three themes next term, just you watch.

There. The justices now have shed their robes for the summer and are off frolicking in the places justices go when they don't want to read briefs or write opinions or listen to lawyers drone on in court. Good for them.

Image: REUTERS/Larry Downing

This article available online at:

http://www.theatlantic.com/national/archive/2011/06/the-9-best-supreme-court-dissents-of-the-term/241033/