Legal Commentary

?Dissenting from the Bench?

By Jonathan H. Adler

It appears there has been a slight increase in the reading of dissents from the bench over the past few years.  Is this a sign of a more contentious and less collegial Supreme Court?  It?s the subject of Adam Liptak?s latest ?Sidebar? column.

?Dissenting from the bench,? a new study to be published in Justice System Journal contends, is a sort of nuclear option that ?may indicate that bargaining and accommodation have broken down irreparably.?

Yes, a new study. Academic scrutiny of almost every aspect of the Supreme Court is oppressively comprehensive, and now three sets of researchers have identified the empirical analysis of oral dissents as a new frontier.

Over the 36 years Warren E. Burger and William H. Rehnquist served as chief justices, there were on average three dissents read from the bench each term. In the first four years of the court under Chief Justice John G. Roberts Jr., the number rose by a quarter, to 3.75. . . .

Justice Stevens has spoken up in dissent more often than any other current justice, but that is largely a testament to his longevity. He has written about 600 dissents in his almost 35 years on the court. But he has dissented from the bench just over 20 times.

In percentage terms, Justice Ruth Bader Ginsburg holds the modern record. She has read more than 10 percent of her dissents from the bench, according to the study in Justice System Journal, by William D. Blake, a graduate student in the government department at the University of Texas, and Hans J. Hacker, a political scientist at Arkansas State University.

Full post as published by The Volokh Conspiracy on March 09, 2010 (boomark / email).