Monday, February 14, 2011
Carolyn Shapiro (Chicago Kent) and Christopher Schmidt (Chicago Kent) have posted Oral Dissenting on the Supreme Court to SSRN.
In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have different reasons for deciding to announce their opinions, and the reception and potential influence of an oral dissent varies according to the situation. Recent scholarly efforts to identify a set of factors for predicting the likelihood of an oral dissent thus may miss the forest for the trees. The more interesting question, we suggest, is not necessarily why a Justice might decide to announce a dissent, but why certain oral dissents seem to reverberate while others (perhaps most) are ignored and forgotten. We therefore seek to recenter the discussion of oral dissents, moving to an empirical and analytical discussion of the role that oral dissents actually play in the dynamic relationship between the Court and the American people.