The most interesting part of the NYT article on Dobbs was the news that the Justices considered ending the practice of handing down decisions from the bench. This oral practice was suspended during the pandemic, so it’s only natural that they thought about doing away with the tradition entirely.
I have two (mild) reasons for thinking that the tradition is still a good one. The first is the one emphasized in the article. Dissenters (and concurring Justices) want to voice their views on special occasions. They can do that in writing, of course, but there is something to the idea that the press gives extra coverage to an oral statement by a Justice in case. And maybe that act says something to their colleagues.
The other reason is a little grim. Requiring oral announcements of opinion does serve as a capacity check on the Justices. When Justice Stevens issued his dissent in Citizens United, he had a hard time getting some of the words out. This apparently helped convince him that it was time to retire. Oral argument doesn’t serve a similar function, because a Justice need not say anything.
The principal downside to oral decisions is that a Justice can say something that’s not in the written opinion, which is confusing. This has happened many times in the past, but I’m hard pressed to think of an example where that caused a significant problem.
Posted by Gerard Magliocca on December 16, 2023 at 12:12 PM