Oral Dissenting on the Supreme Court

56 Pages Posted: 8 Feb 2011 Last revised: 21 Aug 2012

Carolyn Shapiro

IIT Chicago-Kent College of Law

Christopher W. Schmidt

Chicago-Kent College of Law; American Bar Foundation

Date Written: 2010

Abstract

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have different reasons for deciding to announce their opinions, and the reception and potential influence of an oral dissent varies according to the situation. Recent scholarly efforts to identify a set of factors for predicting the likelihood of an oral dissent thus may miss the forest for the trees. The more interesting question, we suggest, is not necessarily why a Justice might decide to announce a dissent, but why certain oral dissents seem to reverberate while others (perhaps most) are ignored and forgotten. We therefore seek to recenter the discussion of oral dissents, moving to an empirical and analytical discussion of the role that oral dissents actually play in the dynamic relationship between the Court and the American people.

Keywords: Supreme Court, dissent, oral dissent, media, empirical

Suggested Citation

Shapiro, Carolyn and Schmidt, Christopher W., Oral Dissenting on the Supreme Court (2010). William & Mary Bill of Rights, Vol. 19, p. 75, 2010. Available at SSRN: https://ssrn.com/abstract=1756909

Carolyn Shapiro (Contact Author)

IIT Chicago-Kent College of Law ( email )

565 West Adams St.
Chicago, IL 60661
United States

Christopher W. Schmidt

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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