The Supreme Court has now experimented with broadcasting oral arguments. It was no longer feasible to hold proceedings in the Court. For at least 10 cases, the Justices allowed advocates and Justices to participate remotely. However, during this tumultuous time, the Justices have abandoned entirely another longstanding tradition: announcing opinions from the bench. Generally, the author that writes the majority opinion will give a brief summary, and note any concurrences or dissents.
On rare occasions, a Justice will read a summary of his or her dissent from the bench. (Once, Justice Scalia read his concurrence from the bench!) Here, the dissenter wishes to draw attention to how wrong the majority got it. Each term, there are a handful of dissents read from the bench. New York Times reporter Adam Liptak observed, “A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain.”
These moments are powerful in the usually staid Court, and send a message to the public. Often, the oral dissent deviates, however slightly from the written opinion. I understand that these statements are not always vetted by the other members of the dissent. And, at times, ad-libbing can create tensions. Some Justices will even give the press a written copy of their statement; these documents are not for public disclosure. But the Justices want to make sure the media accurately quote them.
Alas, I do not think we will have any audio hand-downs this year. Since the Court went virtual, opinions have been released without any fanfare. The Court simply posted PDFs on SupremeCourt.gov at 10:00 a.m. To be more precise, the Court would post one PDF, and if there was a second case, wait another five minutes before posting the second PDF, and so forth. Even tough the Justices were not actually announcing the opinions from the bench, the Court’s IT staff spaced apart the postings to simulate what a real decision day would feel like.
And with no hand-downs, we will not have any dissents read from the bench. I regret the loss of this tradition. The audio of the so-called “hand-downs” is not released the same week, as are oral arguments. Usually, Oyez publishes this audio around the following October. Randy and I used this audio in our video series. It was powerful to listen to the Justice describe a case in their own words. Now this sterile term will become even more sterile.