The 20th Annual Leo and Berry Eizenstat
The Role of Disenting Opinions
October 21, 2007
Ruth Bader Ginsburg
Supreme Court of the United States
When Stuart Eizenstat asked me to deliver this 20th Leo and Berry Eizenstat Memorial Lecture, I could hardly refuse. Stu has been a great public citizen, notably as President Carter's chief domestic policy adviser and, during Clinton's presidency, as Ambassador to the European Union, and later as a senior official in the Departments of Commerce, State, and Treasury. His wise counsel, when the White House was considering me for the good job I now hold, proved invaluable, and, as a Supreme Court Justice, I had the pleasure of administering the oath of office when Stuart became our Ambassador to the EU.
The lectureship Stuart established bears the names of his father and uncle. This year, it is appropriate to remember and honor as well Stuart's mother, Sylvia Eizenstat, who died in April at the full age of 93.
Sylvia Eizenstat was well known for her volunteer work in Atlanta's Jewish and secular communities. As the longest serving docent at the Jimmy Carter Library and Museum, she greeted and guided thousands of visitors. "Everyone love[d] her, and love[d] to be around her," Emily "Sissy" Dolvin, who headed volunteer services at the Carter Center, reported. Sylvia Eizenstat's concern and caring for others influenced her son to serve the public good in diverse ways, to help repair tears in his communities, country, and world.
Stuart's commitment to repairing tears, a commitment expressed in the Hebrew words tikkun olam, is perhaps best illustrated by his persistent efforts to obtain from companies and governments in Austria, France, Germany, and Switzerland over eight billion dollars in reparations for Holocaust victims and their descendants. His monumental effort has been widely recognized and applauded, and was several times noted in an important decision of the Court on which I serve. There is an age-old connection between social justice, exemplified by Stuart's efforts to mend tears caused by the Holocaust, and Jewish tradition. One of my predecessors, Justice Arthur Goldberg, famously remarked: "My concern for justice, for peace, for enlightenment, . . . stems from my [Jewish] heritage." The same may be said of Stuart and his family.
Artworks in my chambers display in Hebrew letters the command from Deuteronomy: Zedek, zedek tirdof - "Justice, justice shalt thou pursue." These postings serve as ever-present reminders of what judges must do "that they may thrive." In the Supreme Court of the United States, with difficult cases on which reasonable minds may divide, sometimes intensely, one's sense of Justice may demand a departure from the majority's view, expressed in a dissenting opinion. This audience, I thought, might find of interest some reflections on the role dissents play in the U. S. judicial system.
Our Chief Justice, in his confirmation hearings, expressed admiration for the nation's fourth Chief Justice, John Marshall, in my view, shared by many, the greatest Chief Justice in U. S. history. Our current Chief admired, particularly, Chief Justice Marshall's unparalleled ability to achieve consensus among his colleagues. During his tenure, the Court spoke with one voice most of the time.
In Chief Justice Roberts' first year at the helm, which was also Justice O'Connor's last term on our bench, it appeared that the Chief's hope for greater unanimity might be realized. In the 2005-2006 Term, 45% of the cases we took up for review were decided unanimously, with but one opinion for the Court, and 55% were unanimous in the bottom line judgment. This past term, however, revealed that predictions of more consensus decisionmaking were off the mark. We spoke with one voice in only 25% of the cases presented, and were unanimous in the bottom line judgment less than 40% of the time. Fully one-third of the cases we took up - the highest share in at least a decade - were decided by a bare majority of five.
Typically, 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 presented orally therefore garners immediate attention. It signals that, in the dissenters' view, the Court's opinion is not just wrong, but importantly and grievously misguided. Last term, a record seven dissents were summarized from the bench, six of them in cases the Court decided by 5-4 votes.
I described from the bench two dissenting opinions. The first deplored the Court's approval of a federal ban on so-called "partial-birth abortion." Departing from decades of precedent, the Court placed its imprimatur on an anti-abortion measure that lacked an exception safeguarding a woman's health. Next, I objected to the Court's decision making it virtually impossible for victims of pay discrimination to mount a successful Title VII challenge. (Commenting on these orally announced dissents, Linda Greenhouse, the New York Times's star Supreme Court reporter, wrote that last term will be remembered as the one in which I "found [my] voice, and used it." That appraisal surprised my husband, my children, my chambers staff, and even my colleagues at the Court. All of them have heard me use my voice, sometimes to stirring effect. But it is true, as Linda Greenhouse knew, that only six times before, in thirteen terms on the Court, and never twice in the same term, did I find it appropriate to underscore a dissent by reading a summary of it aloud in the Courtroom.)
Our practice of revealing dissents, it bears emphasis, is hardly universal. In the civil law tradition that holds sway in Europe, and in countries once controlled by a continental power, courts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals, and it is also followed by the European Court of Justice, the High Court of the European Union, seated in Luxembourg.
The British common law tradition lies at the opposite pole. In appeals in that tradition, there was conventionally no "opinion for the court" disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court's disposition. Changes in British practice and in some European tribunals have brought these divergent systems closer together. The European Court of Human Rights, for example, seated in Strasbourg, publishes signed dissenting opinions. But, by and large, the historical traditions hold.
Our system occupies a middle ground between the continental and the British patterns. In the earliest days of our national existence, the U. S. Supreme Court, like the House of Lords, Britain's highest tribunal, issued seriatim opinions. Each Justice spoke for himself whenever more than a memorandum judgment issued. But John Marshall, who served as Chief Justice from 1801 until 1835, thought that practice ill-advised. In its place, he established the practice of announcing judgments in a single opinion for the Court, which he generally wrote himself. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.
What is right for one system and society may not be right for another. The civil law-style judgment is suited to a system in which judges train for and embark on career service soon after university graduation. Promotions in such systems generally depend upon the recommendation of longer-tenured, higher-ranking judges. Common law judges, in contrast, are recruited at middle age from the senior ranks of the practicing bar or of law faculties.
In civilian systems, the nameless, stylized judgment, and the disallowance of dissent, are thought to foster the public's perception of the law as dependably stable and secure. Our tradition, on the other hand, safeguards the independence of the individual judge and prizes the transparency of the process of wielding judicial power.
No doubt, as Chief Justice Roberts suggested, the U. S. Supreme Court may attract greater deference, and provide clearer guidance, when it speaks with one voice. And I agree that a Justice, contemplating publication of a separate writing, should ask himself: Is this dissent or concurrence really necessary? Consider the extra weight carried by the Court's unanimous opinion in Brown v. Board of Education. In that case, all nine Justices signed on to one opinion making it clear that the Constitution does not tolerate legally enforced segregation in our Nation's schools. With similar heft, in a follow-up case, Cooper v. Aaron, all nine Justices jointly authored a statement for the Court powerfully reaffirming - in the face of official resistance in Little Rock, Arkansas - that desegregation in public schools is indeed the law of the land.
On the utility of dissenting opinions, I will mention first their in-house impact. My experience teaches that there is nothing better than an impressive dissent to improve an opinion for the Court. A well reasoned dissent will lead the author of the majority opinion to refine and clarify her initial circulation. An illustration: I wrote for the Court in the Virginia Military Institute case, which held that VMI's denial of admission to women violated the Equal Protection Clause. The published opinion was ever so much better than my first draft, thanks to Justice Scalia's attention-grabbing dissent.
Sometimes a dissent is written, then buried by its author. An entire volume is devoted to the unpublished separate opinions of Justice Brandeis. He would suppress his dissent if the majority made ameliorating alterations or, even if he gained no accommodations, if he thought the Court's opinion was of limited application and unlikely to cause real harm in future cases.
On rare occasions, a dissent will be so persuasive that it attracts the votes necessary to become the opinion of the Court. I had the heady experience once of writing a dissent for myself and just one other Justice that became the opinion of the Court from which only two of my colleagues, in the end, dissented.
Are there 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." The same might be said about my close friendship with Justice Scalia.
Describing the external impact of dissenting opinions, Chief Justice Hughes 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 judge believes the court to have been betrayed."
A classic example is Justice Benjamin Curtis' dissent from the Court's now notorious 1856 decision in Dred Scott v. Sanford. The Court held, 7-2, in Dred Scott that people of African decent whose ancestors were brought here as slaves could never become American citizens. Justice Curtis disagreed in an opinion remarkable for its time. At the founding of our Nation, he wrote, Blacks 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."
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 this further example, I would place Justice Breyer's dissent in last term's school integration cases in the same category. In those cases, the Court invalidated student assignment plans adopted in Seattle, Washington and Louisville, Kentucky. The plans were designed by the cities' authorities to counter resegregation in the local public schools. The question was whether local communities had leeway to use race-conscious criteria for the purpose of bringing about the kind of racially integrated education Brown v. Board of Education anticipated. The Court held, 5-4, that the Constitution proscribed Louisville's and Seattle's efforts.
Justice Breyer's exhaustive dissent concluded: "[T]he very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. . . . [T]hey have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments . . . they believe are needed to overcome the problems of cities divided by race and poverty. . . . The last half-century has witnessed great strides towards racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten [Brown's promise] . . . . This is a decision . . . the Court and the Nation will come to regret."
One of the two dissenting opinions I read from the bench in the 2006-2007 term serves as my last illustration of an appeal "to the intelligence of a future day." Seven years ago, the Court held Nebraska's ban on so-called "partial-birth" abortion unconstitutional, in part because it contained no exception safeguarding the health of the woman. Three years later, in a deliberate effort to undo the Court's ruling, Congress passed a federal ban on the same procedure, also without a health exception. The federal ban was promptly challenged and found unconstitutional in the lower courts. A Supreme Court, which no longer included Justice O'Connor, held, 5-4, that the federal ban survived review for constitutionality.
I recalled, in my dissent, that the Court had repeatedly reaffirmed the State's unconditional obligation, when regulating abortion, to safeguard the woman's health. Not only did the Court, last term, refuse to take seriously once solid precedent demanding a health exception, but the majority also, and alarmingly in my judgment, resurrected "ancient notions about women's place in the family and under the Constitution." Both the federal ban, and the majority's approval of it, I observed, were endeavors "to chip away at a [constitutional] right declared again and again by th[e] Court," and, until the Court's volte-face, "with increasing comprehension of its centrality to women's lives." "A decision" of the character the Court rendered, I said in conclusion, "should not have staying power."
I turn now to another genre of dissent, one aiming to attract immediate public attention and to propel legislative change. My example is the second dissent I read from the bench last term. The case involved a woman, Lilly Ledbetter, who worked as an area manager at a Goodyear tire plant in Alabama - in 1997, the only woman in Goodyear to hold 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 her fifteen male counterparts. A federal jury found it "more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex." The Supreme Court nullified that verdict, holding that Ledbetter 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 province of Title VII (our principal law outlawing employment discrimination) ever to repair.
The Court's ruling, I observed for the dissenters, 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 will likely 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, 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.
Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress' court . . . . to correct [the Supreme] Court's parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."
Another type of dissent that may sound an alarm and propel change in the law is one at the intermediate appellate court level. When a judge on a mid-level court writes separately, he or she may persuade other courts at that level, thus creating a conflict among appellate courts in different regions of the country, one that the Supreme Court eventually may resolve. An impressive dissent, even in the absence of a division among intermediate courts, may alert the Supreme Court that an issue is difficult, important, and worthy of the Justices' attention.
While I hope that the term now underway will see the Supreme Court less divided than the Court was in the 2006-2007 term, I will continue to give voice to my dissent if, in my judgment, the Court veers in the wrong direction when important matters are at stake. I stress important matters because I try to follow Justice Brandeis' counsel. He cautioned that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." One might put in that category an ambiguous provision of a complex statutory regime - the Internal Revenue Code, for example. Justices take comfort in such cases from the knowledge that Congress can amend the provision if it believes the Court has gone astray.
On when to acquiesce in the majority's view, and when to take an independent stand, Judge Jerome Frank wrote 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 hope I will be granted similar wisdom in choosing my ground.