Oral dissents are back in vogue at the Supreme Court as liberals lament latest rulings

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — As the conservative Supreme Court majority has won case after case in recent days, liberal dissenters are having their moment in the courtroom.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson each took the rare step of reading provocative dissenting statements this past week. The ritual from the elevated mahogany bench offered a bit of drama before rapt courtroom spectators and a chance to draw public attention to their views.

In the face of the conservative dominance, it was the best they could do.

After Justice Neil Gorsuch on Friday announced the 6-3 decision letting an Oregon city ticket homeless people for sleeping outside, Sotomayor spoke up.

“Sleep is a biological necessity, not a crime,” she said, reading from notes before her. Observing that the city of Grants Pass arrests and fines people for sleeping in public, even if there’s no available shelter bed, Sotomayor said the law “punishes them for being homeless.”

Gorsuch, who sits at Sotomayor’s immediate right on the bench, kept his head turned toward her, listening impassively. Other justices stared out at spectators or down at notes, perhaps anticipating the next opinions, and dissents, to be revealed.

Protracted, bluntly worded dissents from the bench – a singular practice taken at the end of an annual court session when the toughest cases come down – are mainly wielded these days by the liberals. They have been more loudly trumpeting their differences with the right-wing majority, whether in the courtroom or confined to the page.

Oral dissents add no legal weight to what’s written in a dissenting opinion. Still, they give the generally cloistered justices a way to amplify gripes with the majority – notwithstanding the sedate setting of the courtroom.

Following the decision on homeless encampments Friday, Chief Justice John Roberts announced a decision significantly curtailing the power of federal regulators and enhancing the authority of judges, again by a 6-3 vote.

That prompted dissenting Kagan to denounce the “massive shock” to today’s complex federal system that regulates air and water pollution, keeps drugs safe, and protects consumer and investor interests.

The court majority reversed a 1984 milestone that required judges to defer to reasonable agency interpretations of their congressional mandates. That case, which Congress, executive branch agencies and the judiciary followed for 40 years, reflected the widespread understanding that statutes are often ambiguous and that agencies, with their expertise, were best suited to interpret them.

Her oral dissent lasted nearly 15 minutes, about five minutes longer than Roberts’ rendition of the majority opinion. As she spoke, Roberts gazed downward.

The targets of oral dissents seldom react or subtly reveal any sentiment. They’ve won.

Kagan’s zingers extended to her written opinion. “In one fell swoop, the majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden,” Kagan wrote, adding, “If opinions had titles, a good candidate for today’s would be Hubris Squared.”

The majority’s reversal of the 1984 Chevron v. Natural Resources Defense Council marked the third time in three years that conservatives had reversed foundational, decades-old precedent. Last year, it overturned a 1978 case allowing racial affirmative action in college admissions. In 2022, it threw out the 1973 Roe v. Wade decision giving women the constitutional right to end a pregnancy.

‘Tough luck’

Bench announcements occur in the courtroom, without cameras or audio access. They begin with the author of the majority opinion delivering the facts of the case, law involved, and the resolution. This is usually a straightforward exercise, although some justices, notably Roberts and Kagan, tend to incorporate some suspense and occasional levity.

An oral dissent is necessarily more impassioned.

In Friday’s homelessness dispute, the Gorsuch majority ruled that enforcement of bans on camping on public property against homeless people do not violate the 8th Amendment’s prohibition on cruel and unusual punishment.

Gorsuch said the dilemma of homelessness is a complex matter for policymakers and elected officials, not judges. “At bottom,” he wrote in his opinion, “the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising the responses. It does not.”

His courtroom tone was as calm and steady as Sotomayor’s was emphatic.

Sotomayor closed by referring to the Supreme Court’s obligation to safeguard constitutional rights for all Americans, rich and poor, “especially when doing so is uncomfortable or unpopular.”

The day before, Sotomayor had also read an oral dissent  to protest a decision by the six-justice conservative majority that curtailed the power of the Securities and Exchange Commission to enforce fraud regulations. The ruling eliminated the ability of the SEC and other agencies to resolve claims with internal administrative hearings, rather than go to federal court.

The message from the court to agencies losing a crucial enforcement tool, Sotomayor asserted in the courtroom: “Tough luck. Get a new statute from Congress.”

The newest justice joins in

There was a time when conservative dissenters were heard more frequently in the white marble setting, up until recent years as the controlling right-wing supermajority coalesced. Justice Antonin Scalia, who served from 1986 until his death in 2016, took advantage of the practice with his theatrical flair and confrontational style.

Now, oral dissents have become the exclusive tool of the left wing, even in cases when some conservatives lose, too.

On Thursday, Jackson, the court’s newest justice and its first African American woman, condemned the majority’s dismissal of an Idaho abortion dispute. The majority had engineered a cross-ideological and politically expedient compromise, ending the case for the time being.

Jackson said the court should have been able to resolve the conflict over reproductive care that began in Idaho but is emerging in other states that banned abortion after the justices reversed the constitutional right.

From her freshman seat at the far end of the bench, Jackson said the court had a chance to bring clarity and certainty to a tragic situation but had “squandered it.”

The disputed Idaho abortion ban allowed an exception only to prevent the pregnant woman’s death, in conflict with a 1986 federal law requiring hospitals to provide treatment to “stabilize” needy patients. The US Justice Department argued that Idaho women suffering serious complications from a pregnancy and requiring an abortion to preserve their health should be covered by that law, the Emergency Medical Treatment and Labor Act (EMTALA).

The case had seemed destined for some sort of compromise in this fractious election year. Conservative Justice Amy Coney Barrett, along with Jackson, Sotomayor and Kagan, appeared more concerned about access to emergency reproductive care than their five male colleagues during oral arguments.

In their private deliberations, the justices may have remained initially divided along those gender lines, or possibly along the familiar conservative-liberal divide. Whatever the rift, Barrett, Roberts and other justices bridged the gap. The majority said the case had been “improvidently granted” and sent it back to lower courts for further proceedings.

Jackson, along with three dissenters on the far-right, suggested their colleagues had engaged in a fiction regarding disputed facts to insist on dismissal. (Justice Samuel Alito, joined by Justices Clarence Thomas and Gorsuch, wrote that, “This about-face is baffling.” Alito noted that the court majority had let the state’s abortion ban take effect, indicating under the justices’ usual standards that Idaho had a “strong” likelihood of success in its dispute with the Biden administration.)

But only Jackson declared her dissent from the bench. She closed her remarks, as well as her written opinion, by chiding her colleagues for putting off the case. She said pregnant patients in Idaho and elsewhere would pay the price for their inaction.

“We owe them,” she said, “an answer.”

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