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.
Broadly speaking, the Supreme Court's Fisher ruling permits, as the Court's previous opinions had, the use of affirmative action in limited circumstances. At the same time, though, it highlights the burden that schools must meet to defend their race-conscious programs.
Although many Court watchers thought that the justices would use the case – brought by Abigail Fisher, a white student who attributed her rejection from the University of Texas to the school's affirmative action policies – to reach the broad conclusion that affirmative action is unconstitutional, the Court rejected that approach.
In her dissent, Ginsburg expressed relief that the Court avoided a more sweeping ruling against affirmative action, but she nonetheless took her fellow justices to task for their decision to send the case back to the appellate court.
Ginsburg took the view that there was no need for a remand because the program employed by the University of Texas clearly passed muster under her reading of the Court's previous affirmative action cases. "In my view … there is no need for a second look," she said from the bench.
Ginsburg also took the opportunity to reiterate her view that affirmative action is an appropriate way to rectify historical discrimination. "I have several times explained why government actors, including state universities, need not blind themselves to the still lingering, every day evident, effects of centuries of law-sanctioned inequality," she said.
Meanwhile, Ginsburg also voiced her disapproval with the Court's 5-4 decisions in two cases arising under Title VII of the Civil Rights Act of 1964, which prohibits certain forms of discrimination in the workplace. Both Vance and Nassar involved questions of what an employee needs to establish to demonstrate that an employer is liable for a Title VII violation. In both cases, the majority picked the standard that makes it harder for employees to win. Ginsburg dissented in both cases.
From the bench, Ginsburg said that the two decisions "dilute the strength of Title VII in ways that Congress could not have intended."
In her comments from the bench, Ginsburg referenced the 2007 case Ledbetter v. Goodyear Tire and Rubber Company. As she did Monday, Ginsburg dissented from the bench in Ledbetter, criticizing the Court for impermissibly narrowing Title VII.
Two years after the Ledbetter decision, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which effectively undid the Court's decision in that case. Yesterday, Ginsburg noted her desire for similar legislative responses to the Vance and Nassar decisions.
"Today, the ball again lies in Congress' court to correct the Court's wayward interpretations of Title VII," she said.