Roberts Pens First High Court Solo Dissent in Free Speech Case (1)

March 8, 2021, 4:24 PM; Updated: March 8, 2021, 7:19 PM

Chief Justice John Roberts racked up a first in his nearly 16 years on the Supreme Court bench: a solo dissent in an argued case.

The 66-year-old jurist is seen as a consensus builder on the conservative-leaning court, whose job lately has been to narrow high court rulings and make slow changes in the law.

But in a free speech case on Monday, Roberts parted ways with his colleagues, saying nominal damages alone—something like $1—couldn’t keep a suit alive in federal court. “If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar,” Roberts said.

The chief justice infrequently dissents, having been in the majority in 97% of the cases decided last term.

Roberts often opts to join another justice’s dissenting opinion, rather than pen one himself. When he does dissent, however, it can be stinging.

In the Supreme Court’s landmark 2015 ruling recognizing the right for same-sex couples to marry, Roberts said the plaintiffs should “by all means celebrate today’s decision.”

“But do not celebrate the Constitution. It had nothing to do with it,” Roberts said.

Court’s Center

Solo dissents themselves are relatively rare in the Supreme Court, accounting for approximately 10% of vote breakdowns since the court’s 2010 term, according to SCOTUSblog.

That’s likely because the court is considered a collegiate body, with the justices themselves referring to their colleagues as family. That could make it difficult for a justice to step out on their own and criticize their colleagues, said University of Minnesota professor Timothy Johnson.

Justice Elena Kagan, who joined the court in 2010, and Justice Brett Kavanaugh, who joined in 2018, are the only other justices who have been on the bench a significant amount of time who haven’t penned a solo dissent, according to Washington University’s Supreme Court Database. Justice Amy Coney Barrett has only participated in a handful of opinions since joining the court in October 2020.

That makes sense, Johnson said, as Kagan and Kavanaugh are considered consensus builders, too.

Neither are the most liberal or conservative justice on the bench, and they really do circle around the court’s center, Johnson said.

That makes it less likely that they’d take extreme positions that their colleagues would balk to sign onto.

Clarence Thomas, the current court’s longest serving justice and widely considered its most conservative, is the most prolific solo dissenter, notching an average of two per term since 2005.

Justice Sonia Sotomayor, the most liberal justice on the court, is next on the list, filing on average under one solo dissent per term since joining in 2009.

(Updates with comments from University of Minnesota professor Timothy Johnson.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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