boston.com your connection to The Boston Globe

Oral dissents give Ginsburg new voice

Justice delivers forceful readings

WASHINGTON -- Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.

Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, justices John Paul Stevens, David H. Souter, and Stephen G. Breyer.

But the words were clearly her own, and they were both passionate and pointed.

In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now "differently composed than it was when we last considered a restrictive abortion regulation."

In the latest case, she summoned Congress to overturn what she called the majority's "parsimonious reading" of the federal law against discrimination in the workplace.

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 also profoundly wrong.

It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Stevens, in a decidedly more low-key manner.

The oral dissent has not been, until now, 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 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."

The justice's acquaintances have watched with great interest what some depict as a late-career transformation. "Her style has always been very ameliorative, very conscious of etiquette," said Cynthia Fuchs Epstein, a sociologist and a longtime friend. "She has always been regarded as sort of a white-glove person, and she's achieved a lot that way. Now she is seeing that basic issues she's fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court."

SEARCH THE ARCHIVES