I respectfully dissent
Members of Congress, I have the high privilege and the distinct honor of presenting to you the President of the United States.This is the customary introduction said by the Speaker of the U.S. House of Representatives at the beginning of the president's annual State of the Union message to Congress. The tradition goes back several presidencies and has occurred regardless of party alignment. In the 2007 State of the Union address (skip to 12:25 in the linked video), Speaker Nancy Pelosi, a Democrat (who is the current speaker as of February 2020), introduced President George W. Bush, a Republican, with these words, and Bush famously responded by saying (and followed with unanimous standing ovation), "Tonight, I have the high privilege and distinct honor of my own, as the first president to begin the State of the Union message with these words: Madame Speaker."
Traditionally, the applause and standing ovation that follows this introduction is performed out of respect for the office of President of the United States, not necessarily for the person who currently holds the office. This is why it is typical for all observers present, regardless of political or party affiliation, to stand and applaud the president as he is walking into the House chamber and after the speaker delivers the introduction. (During the speech is when the members of the audience selectively stand and applaud to things they agree with—usually, only about half of the room stands and applauds the things the president says.) This is also why the speaker typically characterizes the introduction of the president as a "high privilege and distinct honor" regardless of whether the speaker agrees with the views of the president. The office and role of President of the United States is so distinguished and so critical to the Constitution of the United States that it inherently inspires awe and respect among observers.
This tradition was broken during the current administration. In the 2019 State of the Union address, President Donald J. Trump entered the floor of the House to the usual near-unanimous applause and standing ovation. Nancy Pelosi was Speaker of the House, as the Democratic Party had just regained a majority in the House of Representatives, which they lost in the 2010 midterm elections. This was the first instance during Trump's presidency where the speaker was not of his own party. The dynamic between the two was unusual. At the time, the U.S. government had just come out of a lengthy shutdown crisis, in which the Congress could not decide on how to allocate funds to the federal government (especially as Trump wanted to build a wall along the U.S.–Mexican border).
As President Trump approached the podium, he first shook the hand of his Vice President, Mike Pence, then perhaps reluctantly, the hand of Speaker Pelosi. He then turned back to face the members of Congress, enjoying another few moments of the customary applause. Ordinarily, this is where Pelosi would have banged her gavel a few times, bringing the House chamber to order, then announced the customary introduction. Instead, Trump quieted the chamber himself, thanked the audience a few times, and then proceeded directly with his speech without giving Pelosi a chance to introduce him. One can only speculate as to why it occurred. It is mostly likely the case that Trump simply forgot to have Pelosi introduce him. Pelosi, for her part, donned a brief look of confusion, but then regained her composure, sitting down slowly and letting the president talk.
This was 2019. The 2020 State of the Union address was even worse. Delivered just a few weeks ago, on February 4, 2020, it was Trump's last State of the Union Address before the 2020 presidential election. At the time, Trump was under impeachment by the House of Representatives following an inquiry led by Pelosi; his trial was underway in the Senate. Needless to say, Pelosi and Trump were not on good terms at the time, and it was the "elephant in the room" throughout the night.
As Trump walked into the House chamber, all stood and clapped for his entrance. When he approached the chair, Pelosi reached her own hand out to shake that of the president. Before he could receive her gesture, Trump spun around to face the members of Congress still applauding. This was the first time in recent memory that any president of the United States has ever declined to shake the hand of the Speaker of the House before the start of the State of the Union message. It was an act of disrespect unprecedented (to my knowledge) in modern U.S. politics. Once again, Pelosi donned a brief look of confusion, but then regained her composure, adjusting her microphone a few times carefully. This time, Pelosi made sure to avoid a repeat of 2019, banging her gavel a couple times to silence the chamber as she delivered her introduction.
"Members of Congress," she began, pausing for a brief second, "the President of the United States."
I was floored. While 2019 could be neatly explained as an honest mistake, this was no casual oversight. Ordinarily, Pelosi should have said, "I have the high privilege and distinct honor of presenting to you the President of the United States." It's hard to say whether it was a calculated move that she had been planning from the start or whether it was an impulsive decision after Trump disrespectfully declined to shake her hand. After the speech was over, Pelosi notoriously held up her copy of the speech and ripped it up. While the media chose to focus on that also-unprecedented moment to highlight the intense disrespect between the two government leaders, I was already stunned by Pelosi's deliberate omission of what I thought was one of the most important ceremonial and respectful gestures in House procedures.
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Perhaps the most noteworthy was the friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia. Justice Ginsburg was nominated to the Supreme Court in 1993 by Democratic President Bill Clinton, and Justice Scalia was nominated to the Court in 1986 by Republican President Ronald Reagan. Throughout their lengthy tenure (Ginsburg remains on the Court, and Scalia died in 2016), these two were arguably the most ideologically opposite justices on the bench (Scalia was perhaps second to Justice Clarence Thomas as the most conservative justice). Nevertheless, when they were outside of the office, the two got along really well. They both enjoyed opera together, and they would invite each other to dinner frequently. When asked about his friendship with Ginsburg, Scalia once stated: "What's not to like? Except her views on the law of course." In celebration of their friendship, American playwright Derrick Wang composed an entire opera entitled Scalia/Ginsburg, which Ginsburg fondly recalled in her statement upon the death of her colleague. It's hard to think of a more compelling example of how agreement is not a prerequisite to respect.
The polarization of the modern political climate in the United States is something that has been discussed extensively in the media and in academia. Americans don't just disagree on the answers to political questions (e.g. should a carbon tax be implemented to mitigate the effects of anthropogenic global warming?), but they also disagree intractably on what the questions are (e.g. should global warming be a nationally prioritized concern in the first place, or worse, is anthropogenic global warming a real phenomenon?). As we navigate these turbulent waters, it is occasionally difficult to find respect for the people with whom we disagree. Oftentimes a political issue is so intractable that feelings of anger, hate, and fear overtake our desire for logic, order, and charity.
Just as issues facing the body politic have become more polarized with time, so have issues facing the Supreme Court of the United States. A few recent examples that come to mind are Obergefell v. Hodges (2015), the landmark decision in which the Court held that the Fourteenth Amendment to the U.S. Constitution requires states to issue marriage licenses to same-sex couples, and Trump v. Hawaii (2018), the landmark decision in which the Court held that a presidential proclamation which restricted travel from several Muslim-majority countries did not violate the First Amendment. Both of these cases, among many others, were decided by a 5–4 vote. Nevertheless, there is a common phrase used by Supreme Court justices when writing dissenting opinions. The phrase was used in both Obergefell v. Hodges and in Trump v. Hawaii.
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."I respectfully dissent." This is the customary closing to dissenting opinions, and the practice began around the mid-twentieth century. It has grown to be one of my favorite phrases in the United States government, and I often look for its presence or omission when reading Supreme Court decisions. From a cursory examination of the phrase, it seems almost oxymoronic. It feels especially incongruous where the author was particularly scathing in their treatment of the majority's opinion. For this reason, it is occasionally difficult to avoid a sarcastic interpretation of the phrase. It's like reading: "The majority today has made an incredibly stupid decision. I respectfully dissent."
I respectfully dissent.
—Chief Justice John Roberts, dissenting in Obergefell v. Hodges (2015)
Yet I have always found admirable its explicit affirmation of respect for one's colleagues despite at-times vehement disagreement. I find the tradition similar in spirit to the customary introduction of the president by the speaker. Supreme Court justices serve on the Court for life, so if a justice doesn't like a colleague, they can't just ignore them indefinitely. Even if a justice finds a colleague's opinion insufferable, the justice just has to write a dissenting opinion and then move onto the next case. Working in this field requires collaboration with individuals with whom you vehemently disagree on certain issues. In fact, the majority of cases that come before the Supreme Court are decided unanimously. It is critical for Supreme Court justices to set aside their personal feelings about fellow justices from their professional opinions about individual cases, just as Justice Ginsburg and Justice Scalia did.
Nevertheless, the phrase was not used ubiquitously. Some justices didn't believe in the phrase at all. Justices Scalia and Ginsburg were two such justices, their off-the-bench friendship notwithstanding. Scalia used the phrase regularly in his early tenure on the Court (e.g. in McIntyre v. Ohio Elections Commission (1995), a case I discussed in a blog post last year), but would drop it towards the end of his career, e.g. in Obergefell v. Hodges (2015). In its place, justices may use various other phrases. Majority opinions usually end with this kind of "decretal language", in which they state explicitly that the lower court's judgment is "reversed", "affirmed", or "vacated". Instead of "I respectfully dissent", justices sometimes decide to end their opinions by saying what they would have wanted the decretal language to be. For example, in the case Fisher v. University of Texas (2016), instead of the usual respectful dissent, Justice Clarence Thomas ended his dissenting opinion with "I would overrule Grutter and reverse the Fifth Circuit’s judgment."
The spiciest alternative to "I respectfully dissent" occurs in cases so intractable that the justices make a deliberate point to avoid the phrase. During the 2000 presidential election between Democratic candidate Al Gore and Republican candidate George W. Bush, a controversy occurred during the vote-counting process of Florida ballots. Specifically, due to a flaw in the design of the polling machines, some of the ballots were not marked properly—on some ballots, you could see partial evidence that a voter wanted to mark a candidate (e.g. a "hanging chad" or a "dimpled chad"), and the dispute revolved around whether to count such votes. At the time, the election was so close that the outcome of the election would hang on the decision of whether to count these votes. Without the controversial ballots, George W. Bush would win Florida and consequently the whole country; with the controversial ballots, Al Gore might still have a chance.
The resulting dispute ended up before the Supreme Court of the United States for oral argument on December 11, 2000. The Court's decision was made overnight and announced the next day on December 12, 2000. The Court held that changing up the rules on how to count ballots in different counties violated the Equal Protection Clause of the Fourteenth Amendment, and that no alternative method could be established within the time limit set by federal law, so the original election rules should be allowed to stand. In effect, through its decision in Bush v. Gore (2000), the Supreme Court decided the result of the 2000 presidential election.
Some of the dissenting justices were livid at this result, and so came the most memorable conclusion to any dissenting opinion I've ever read. At the end of her dissenting opinion, Justice Ruth Bader Ginsburg wrote:
... In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.Wow. I dissent. The phrase is so spicy because it is an indisputable reference to the usual I respectfully dissent. Ginsburg is not only communicating that she disagrees with the opinion of her colleagues, but she disagrees so vehemently that she has lost respect for her colleagues as well. Just as I was floored when Speaker Pelosi omitted the "high privilege and distinct honor" part of her introduction of the President, I was floored when I read this scathing omission of the "respectful" part of Ginsburg's dissent. It is a phrase that Ginsburg's dear friend Justice Scalia would later emulate in the case King v. Burwell (2015), which upheld a portion of the Patient Protection and Affordable Care Act (also known as Obamacare) concerning tax credit eligibility as constitutional.
I dissent.
I grew up being told to respect everyone. As the Golden Rule states: "treat others the way you want to be treated". As these conventions in Congress and in the Supreme Court demonstrate, agreement is not a prerequisite to respect. I had been looking forward to hearing Pelosi say how much of a privilege and honor it was to introduce Trump. I look forward in every Supreme Court case to seeing the words "I respectfully dissent" on the slip opinion. It serves as a reminder of civility even in divided government—that you need not agree with your peer in order to have respect for them. As the twenty-first century progresses at a lightning-fast pace, it is difficult sometimes to remember this expectation of civility.
When asked once why he got along so well with Justice Ginsburg despite their differences, Justice Scalia said: "I attack ideas, I don't attack people. Some very good people have some very bad ideas, and if you can't separate the two, you got to get another day job. You don't want to be a judge, at least not a judge on a multi-member panel." It is this sentiment in Scalia I admire so greatly (even if I don't necessarily agree with all of his views of the law). We should all strive to follow the lead of Scalia and Ginsburg. Try to be respectful to those whom you believe are not doing the same for you. This does not necessarily mean you should respect bullies or avoid standing up to them. It is, however, important to choose your battles carefully and rationally. And so, to both Mr. Trump and Ms. Pelosi: I respectfully dissent.