As Supreme Court Justice Anthony Kennedy summarized the Court's decision in the University of Texas affirmative action case Monday, Justice Ruth Bader Ginsburg trained her eyes on the pile of papers in front of her, stealing one last glance at her notes.
When Kennedy concluded, Ginsburg launched into one of the Court's more uncommon rituals: reading a dissent from the bench. "If you think that you can think about a thing inextricably attached to something else without thinking about the thing which it is attached to, then you have a legal mind," she said, quoting the late Professor Thomas Reed Powell to take a swipe at the majority's reasoning in the case.
Ginsburg, it turned out, was just warming up.
By the time the morning was over, Ginsburg had dissented aloud not only in the affirmative action case, Fisher v. University of Texas, but also in two employment discrimination cases, Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.
Although dissenting opinions are quite common, it is unusual to see a justice read a dissent from the bench. So did Ginsburg's marathon set a record? It turns out that the answer depends on how you count her dissents.
Technically, Ginsburg only read two dissents yesterday. That's because she combined the two employment discrimination cases into one oral dissent. According to statistics compiled by Supreme Court librarian Jill Duffy and Federal Judicial Center attorney Elizabeth Lambert, that wouldn't be the first time the same justice has dissented from the bench twice in the same day.
Indeed, the statistics, which date back to 1969, indicate that there have been at least four other occasions when that's happened: Justice Byron White and Justice William Douglas each did it once, and Justice Stephen Breyer has done it twice.
But if the Vance and Nassar decisions are counted separately – which it makes sense to do since Ginsburg addressed the cases separately while speaking – that would mean that she set a record, at least in the Court's modern history, yesterday.
Dissents from the bench are a rare departure from the Court's carefully choreographed movements. Reserved for cases in which there are heated disputes among the justices, they gave a dissenter the ability to publicly shame the majority for perceived errors. Earlier this month, for instance, Justice Antonin Scalia charged the majority of the Court with "tax[ing] the credulity of the credulous" for its decision, in the case of Maryland v. King, to uphold a Maryland law that allows the police to take DNA from certain arrestees without first obtaining a warrant.
Contrary to popular belief, justices who are dissenting from the bench usually do not present the full versions of their written, published dissents. Instead, they frequently summarize them and even include language that's nowhere to be found in the versions that survive for posterity.
Any justice can choose to read a dissent from the bench, but some choose to do so far more frequently than others. Scalia, for instance, has dissented from the bench on 19 separate occasions. Meanwhile, Justice Sonia Sotomayor and Chief Justice John Roberts are the only current members of the Court who have yet to dissent orally.
Ginsburg used her comments from the bench Monday to take aim at the Court's approach to affirmative action and employment discrimination.
In Fisher, a federal appellate court had ruled that the affirmative action program employed by the University of Texas is constitutional. In its decision yesterday, the Supreme Court determined, by a 7-1 vote (Justice Elena Kagan recused herself), that the appellate court had improperly applied the legal standard, known as strict scrutiny, that governs affirmative action cases. Now the case is back in the hands of the appellate court, which must reconsider its ruling under a more exacting framework.