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Boston University, School of Law




Justice Souter's imminent retirement from the U.S. Supreme Court provides President Obama with his first opportunity for a judicial nomination to the high court. President Obama's remarks about the relevance of life experience and of empathy are sparking discussion of relevant judicial qualifications. This Essay examines Professor Lani Guinier's recent argument that dissenting justices, particularly through the use of oral dissents, may spur ordinary people to action and that such dissents may expand the range of democratic action, as part of what she and Gerald Torres call "demosprudence." That controversial decisions by the United States Supreme Court can spur dissenting citizens to action is, by now, a familiar idea. Offering as examples dissents by Justices Souter, Ginsburg, and Scalia, Guinier looks at the catalytic role of dissenting opinions. The Essay relates this current interest in the role of dissent - and the role of biography in spurring dissents - to earlier legal scholarship about the importance of empathy in judicial decision making and as a spur to social change. It considers the emphasis on life experience and the capacity for empathy in President Obama's statements about appropriate judicial qualifications. It concludes by contrasting Guinier's project with other perspectives on the institutional capacity of the Supreme Court to spur social transformation better to realize constitutional goals and values.

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