"[T]his is not law, it’s politics"

thanks to john at americablog for calling this to my attention... i had seen the nyt headline - Oral Dissents Give Ginsburg a New Voice on Court - and had passed it over because it didn't grab my eye...

To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Justice Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, Justice Ginsburg’s style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

there are probably no two institutions that are more respectful of tradition, precedents, and norms than courts and legislatures... for justice ginsburg to resort to oral dissents twice already in one term is a strong indicator of very powerful undercurrents among the justices... i am happy and quite disturbed at the same time... happy to hear a justice speaking out in a forceful way and disturbed that she feels the need to do it...

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