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Top 7 most prominent dissents during the Roberts Supreme Court era

By Moyers & Company
Saturday, July 12, 2014 9:50 EDT
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Supreme Court Associate Justice Sonia Sotomayor speaks during a Commonwealth Club event in San Francisco on January 28, 2013. (AFP)
 
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This story originally appeared at BillMoyers.com

Slate legal reporter Dahlia Lithwick tells Bill Moyers that the Roberts Supreme Court is one of the most ideologically polarized in history.

“Some of the justices are very proud of the fact that they don’t read any newspaper of record,” she says. “More and more the justices only hire clerks who agree with them… So this court is as polarized in terms of who they interact with, who they see, who they confer with — I think that we have ever seen in history.” Lithwick observes that the minority dissents are “a pretty good indicator” of how the two ideological sides of the court “don’t even see each other.”

We rounded up some of the most prominent dissents during the Roberts era, and selected highlights from seven.

1. Justice Ruth Bader Ginsburg on Hobby Lobby

Justice Samuel Alito, writing the majority decision in Burwell v. Hobby Lobby, stressed that the decision “concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.”

“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ The Court, I fear, has ventured into a minefield.”

In her dissent, Ruth Bader Ginsburg argued that there was no coherent legal basis for the distinction. “Would the exemption …extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?” she wrote.

“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the Establishment Clause was designed to preclude.’ The Court, I fear, has ventured into a minefield.”

2. Elena Kagan on prayers opening town hall meetings

“I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

In Town of Greece v. Galloway, the majority ruled that a town could open its official meetings with Christian prayers despite the fact that several non-Christian members of the community found it objectionable.

In her dissent, Justice Elena Kagan wrote, “I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian. In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

3. Justice Sonia Sotomayor on affirmative action

“As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

In her dissent in Schuette v. Coalition to Defend Affirmative Action, Justice Sonia Sotomayor argued that the majority’s findings were divorced from the reality of the role race continues to play in American society.

“In my colleagues view,” she wrote, “examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

4. Justice Stephen Breyer on McCutcheon

“It understates the importance of protecting the political integrity of our governmental institutions.” In his response to the court striking down limits on the total amount that individuals could donate to political campaigns during an election cycle, Justice Stephen Breyer savaged the majority’s logic:

“Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.”

5. Justice Ruth Bader Ginsburg on voting rights

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

In his majority opinion in Shelby County v. Holder, which disabled the Voting Rights Act, Chief Justice John Roberts argued that the Act was no longer necessary. The Court struck down the part of the law that allowed the federal government to create a list of state and local governments identified as having a history of voting discrimination to get approval — or preclearance — before making any changes to their voting laws or procedures.

In her dissent, Justice Ruth Bader Ginsburg challenged the chief justice’s reasoning; given the importance of the right to vote, she wrote that it should be up to an elected body — Congress — to decide whether or not the law was out-of-date. “Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick,” she wrote.

“Instead, the Court strikes [the Voting Rights Act's] coverage provision because, in its view, the provision is not based on ‘current conditions.’ … It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. … Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

6. Justice John Paul Stevens on Citizens United

“The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics.”

Former Justice John Paul Stevens’ dissent in Citizens United v. FEC has become something of a classic.

Stevens not only warned that “the Court’s ruling threatens to undermine the integrity of elected institutions across the Nation,” he also worried that “the path it has taken to reach its outcome will, I fear, do damage to this institution.”

“The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics,” he wrote.

7. Justice John Paul Stevens on guns

Supreme Court Justice John Paul Stevens speaks during the annual meeting of the 7th Circuit Bar Association & Judicial Conference of the 7th Circuit, May 3, 2010 in Chicago. (AP Photo/David Banks)
“Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

In District of Columbia v. Heller, the majority ruled that a city-wide ban on handguns was unconstitutional because the right to bear arms isn’t confined to the “well regulated militia” mentioned in the Second Amendment, but is an individual right.

Justice Stevens wrote that the majority’s decision was based on a poor understanding of American history. “The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia,” he argued. “It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

This story originally appeared at BillMoyers.com

 
 
 
 
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