At least one dissent per year is read aloud from the bench by a U.S. Supreme Court Justice. These occasions are often among the most dramatic events of the Court’s calendar, as they feature a Justice speaking directly, and often passionately, to an audience which includes her fellow Justices. So, which cases tend to prompt these oral dissents, and what are the Justices’ rhetorical strategies when they speak rather than just write their dissents? This Article will explore the answers to these questions by examining the oral dissents of Ruth Bader Ginsburg and Antonin Scalia from the year 2000 to the times of their respective deaths. These Justices were selected because they were two of the most prolific oral dissenters and because they embody starkly contrasting judicial philosophies. The Article canvasses the concept and purpose of oral dissent and details the kinds of cases in which each Justice was more likely to orally dissent. This Article argues that Scalia’s rhetoric evinces a view of the law as “autonomous,” operating independently of the facts of the case and ignoring the impact of the law on the litigants. He directed his dissents at the academy, perhaps in an effort to create a conservative counter canon. In contrast, Ginsburg’s feminist jurisprudence espouses a view of the law as responsive to the facts and the need for social change. Her oral dissents often targeted cases involving discrimination, and she frequently spoke directly to those affected by unequal treatment, having experienced such treatment herself.
