Friday, March 27, 2015


Traditionally, when judges or justices dissent, they do so "respectfully." But in Alabama Legislative Black Caucus v. Alabama, issued this week, Justice Scalia didn't "respectfully" dissent; he just dissented.

According to Josh Blackman, several other members of the Roberts Court have "disrespectfully dissented," including Justice Roberts himself in House v. Bell (a 2006 case involving post-conviction DNA evidence in which Roberts concurred in part and dissented in part).

How much should be we read into the disrespectful dissent? Why would a judge or justice stray from the collegial respectful dissent? Might the judge or justice be sending a message that the opinion deserves no respect because the majority is totally off base? Maybe, as I *think* we saw Justice Ginsburg do in Hobby Lobby ("Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court's judgment can introduce, I dissent.")

But Roberts' disrespectful dissent in House suggests this isn't always the case because Roberts concurred in part in that case. And certainly we have seen some "respectful dissents" in which the dissenting justice clearly believes the majority is out in left field.

What do you think makes a judge or justice "disrespectfully dissent?"

Happy Friday!

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