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Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue
From the admired judicial authority, author of Louis D. Brandeis (“Remarkable”—Anthony Lewis, The New York Review of Books; “Monumental”—Alan M. Dershowitz, The New York Times Book Review ), Division and Discord, and Supreme Decisions —Melvin Urofsky’s major new book looks at the role of dissent in the Supreme Court and the meaning of the Constitution through the greatest and longest lasting public-policy debate in the country’s history, among members of the Supreme Court, between the Court and the other branches of government, and between the Court and the people of the United States.
Urofsky writes of the necessity of constitutional dialogue as one of the ways in which we as a people reinvent and reinvigorate our democratic society. In Dissent and the Supreme Court, he explores the great dissents throughout the Court’s 225-year history. He discusses in detail the role the Supreme Court has played in helping to define what the Constitution means, how the Court’s majority opinions have not always been right, and how the dissenters, by positing alternative interpretations, have initiated a critical dialogue about what a particular decision should mean. This dialogue is sometimes resolved quickly; other times it may take decades before the Court adjusts its position. Louis Brandeis’s dissenting opinion about wiretapping became the position of the Court four decades after it was written. The Court took six decades to adopt the dissenting opinion of the first Justice John Harlan in Plessy v. Ferguson (1896)—that segregation on the basis of race violated the Constitution—in Brown v. Board of Education (1954).
Urofsky shows that the practice of dissent grew slowly but steadily and that in the nineteenth century dissents became more frequent. In the (in)famous case of Dred Scott v. Sanford (1857), Chief Justice Roger Taney’s opinion upheld slavery, declaring that blacks could never be citizens. The justice received intense condemnations from several of his colleagues, but it took a civil war and three constitutional amendments before the dissenting view prevailed and Dred Scott was overturned.
Urofsky looks as well at the many aspects of American constitutional life that were affected by the Earl Warren Court—free speech, race, judicial appointment, and rights of the accused—and shows how few of these decisions were unanimous, and how the dissents in the earlier cases molded the results of later decisions; how with Roe v. Wade —the Dred Scott of the modern era—dissent fashioned subsequent decisions, and how, in the Court, a dialogue that began with the dissents in Roe has shaped every decision since.
Urofsky writes of the rise of conservatism and discusses how the resulting appointments of more conservative jurists to the bench put the last of the Warren liberals—William Brennan and Thurgood Marshall—in increasingly beleaguered positions, and in the minority. He discusses the present age of incivility, in which reasoned dialogue seems less and less possible. Yet within the Marble Palace, the members of the Supreme Court continue to hear arguments, vote, and draft majority opinions, while the minority continues to “respectfully dissent.” The Framers understood that if a constitution doesn’t grow and adapt, it atrophies and dies, and if it does, so does the democratic society it has supported. Dissent—on the Court and off, Urofsky argues—has been a crucial ingredient in keeping the Constitution alive and must continue to be so.
(With black-and-white illustrations throughout.)
Urofsky writes of the necessity of constitutional dialogue as one of the ways in which we as a people reinvent and reinvigorate our democratic society. In Dissent and the Supreme Court, he explores the great dissents throughout the Court’s 225-year history. He discusses in detail the role the Supreme Court has played in helping to define what the Constitution means, how the Court’s majority opinions have not always been right, and how the dissenters, by positing alternative interpretations, have initiated a critical dialogue about what a particular decision should mean. This dialogue is sometimes resolved quickly; other times it may take decades before the Court adjusts its position. Louis Brandeis’s dissenting opinion about wiretapping became the position of the Court four decades after it was written. The Court took six decades to adopt the dissenting opinion of the first Justice John Harlan in Plessy v. Ferguson (1896)—that segregation on the basis of race violated the Constitution—in Brown v. Board of Education (1954).
Urofsky shows that the practice of dissent grew slowly but steadily and that in the nineteenth century dissents became more frequent. In the (in)famous case of Dred Scott v. Sanford (1857), Chief Justice Roger Taney’s opinion upheld slavery, declaring that blacks could never be citizens. The justice received intense condemnations from several of his colleagues, but it took a civil war and three constitutional amendments before the dissenting view prevailed and Dred Scott was overturned.
Urofsky looks as well at the many aspects of American constitutional life that were affected by the Earl Warren Court—free speech, race, judicial appointment, and rights of the accused—and shows how few of these decisions were unanimous, and how the dissents in the earlier cases molded the results of later decisions; how with Roe v. Wade —the Dred Scott of the modern era—dissent fashioned subsequent decisions, and how, in the Court, a dialogue that began with the dissents in Roe has shaped every decision since.
Urofsky writes of the rise of conservatism and discusses how the resulting appointments of more conservative jurists to the bench put the last of the Warren liberals—William Brennan and Thurgood Marshall—in increasingly beleaguered positions, and in the minority. He discusses the present age of incivility, in which reasoned dialogue seems less and less possible. Yet within the Marble Palace, the members of the Supreme Court continue to hear arguments, vote, and draft majority opinions, while the minority continues to “respectfully dissent.” The Framers understood that if a constitution doesn’t grow and adapt, it atrophies and dies, and if it does, so does the democratic society it has supported. Dissent—on the Court and off, Urofsky argues—has been a crucial ingredient in keeping the Constitution alive and must continue to be so.
(With black-and-white illustrations throughout.)
544 pages, Hardcover
First published September 22, 2015
51 people are currently reading
722 people want to read
About the author
Melvin I. Urofsky
90 books13 followersMelvin I. Urofsky is professor of law and public policy and a professor emeritus of history at Virginia Commonwealth University. He received his B.A. from Columbia University in 1961 and doctorate in 1968. He also received his JD from the University of Virginia. He teaches at American University and George Washington University Law School.
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Displaying 1 - 30 of 33 reviews
June 11, 2017
My ongoing education into the world of the United States Constitution took an interesting venture when I picked up Melvin Urofosky's book. I had been used to tomes that tackle key constitutional arguments, supported or decreed by the United States Supreme Court. However, Urofsky chose to differ in his approach and overall argument, adding depth and exploring a unique perspective. The general premise of the book, as can be clearly found in its title, is to explore dissent options from the Court and how those commentaries helped shape constitutional progress. Urofsky opens by giving the reader a primer on the Court's opinion system, whereby decisions that are supported by the majority of justices are deemed the 'majority opinion', while those who do not align with the aforementioned decisions are deemed dissents. The early Court was mostly free of these dissents when Chief Justice Marshall sought a uniform, single-voice Court, with sweeping comments made to encompass specific areas of law. Urofsky argues that while Marshall may have sought unanimity, there was no expectation of complete judicial neutering or a lack of opinions. However, at times those justices who had differing opinions left their divergence from being formally recorded. Dissent took on a significant role in the latter part of the 19th century, particularly after the Civil War, where justices were looking to examine Reconstructionist America and ideas differed greatly. Some of the dissents of the day seemed to act as a call in the wilderness to future forward thinking or even radical exploration of how America might find itself in the decades to come. Urofsky cites numerous cases where justices were vehement in their disagreement with the stanch majority, though these opinions served to open new and exciting pathways in constitutional interpretation. The 20th century saw numerous forward thinkers earn seats on the Court, a few given the moniker 'Great Dissenter' for refusing to accept some of the narrow interpretations of the constitutional document. In time, these dissents would be cited in clarifying majority opinions, as if the constitutional breadcrumbs led directly from an early lone voice before it became stronger and more widely accepted. Urofsky sifts through American judicial history to find many such cases and chooses to thoroughly explore them for the curious reader. There is also an interesting discussion of international courts that parallel the US Supreme Court and how they handle both dissent and delivery of opinions. Urofsky presents readers with a degree of uniqueness as it relates to the Court's handling of the Constitution and the ever-developing views on its interpretation. In the latter chapters, as the narrative reaches modern judicial interpretation, Urofsky presents his strongest argument yet, by positing that dissenting opinions do not dilute or lessen the majority opinions of the Court, as had been feared in the early years, but serve to offer a stronger foundation towards better and more comprehensive opinions on which the Court can stand. Tackling many 'buzzword' cases across history, Urofsky shows how the Court exacerbated firm divisions within the country while also creating thinking that helped with progressive thinking. The reader can learn much about the evolutionary discussion of abortion, capital punishment, privacy, and equality through the Court's decisions and the dissents that opened future reinterpretations of these laws. While it would be naive to presume that politics or ideology do not come into play, especially with the more recent 5-4 decisions that have served to leave each decision announced from the Bench to be a gamble, there is surely a wonderful place for dissent in Court discussions, leaving the Constitution a living document that remains ready for new and learned minds to explore, even if some in power couldn't give a 'tweet' about its importance. Urofsky offers up not only a substantial piece of legal and constitutional interpretation here, but he keeps the door open for much discussion and development for the interested reader, however small that group might be.
I have come to love all things legal and constitutional, where I feel able to walk away enriched and offered new arguments to better synthesize what is going on. While I am not American, I can see the importance of the constitutional discussion and how the evolution of the document and its interpretation will better reflect how citizens can live their lives. Urofsky has surely taken on much with this piece, but stands his ground and supports his arguments thoroughly, with both examples and strong citations. The reader who may not be as well-versed in the cases listed, the constitutional significance, or the temperature of the political world at the time need not worry, as Urofsky supplies it all. There is no doubt that the narrative can be dense or even overwhelming, but it is also expected that not all readers will flock to this sort of tome. Still, laypeople need not worry that things will be come too academically heavy as to exclude them from trying to understand what is going on. In fact, it seems Urofsky would like to enlighten those with an interest but who might not have the legal standing to parse through the minutiae that is a Court decision. There have been thousands and to find the few dozen listed within the text that serve to support the evolution of the constitutional interpretation is something Urofsky should be praised for doing. Clear, somewhat succinct, and highly educational, Urofsky wants the reader to follow him along the journey, while refusing to make sweeping generalizations and leaving the reader to swallow his assertions. I would surely read more of Urofsky's work, if only to whet my appetite for constitutional discussions.
Kudos, Mr. Urofsky for stunning me into a sense of complete awe as it relates to all things constitutional. I will recommend this to anyone who has a passion to learn about this subject and the patience to allow a slow and continual absorption.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
I have come to love all things legal and constitutional, where I feel able to walk away enriched and offered new arguments to better synthesize what is going on. While I am not American, I can see the importance of the constitutional discussion and how the evolution of the document and its interpretation will better reflect how citizens can live their lives. Urofsky has surely taken on much with this piece, but stands his ground and supports his arguments thoroughly, with both examples and strong citations. The reader who may not be as well-versed in the cases listed, the constitutional significance, or the temperature of the political world at the time need not worry, as Urofsky supplies it all. There is no doubt that the narrative can be dense or even overwhelming, but it is also expected that not all readers will flock to this sort of tome. Still, laypeople need not worry that things will be come too academically heavy as to exclude them from trying to understand what is going on. In fact, it seems Urofsky would like to enlighten those with an interest but who might not have the legal standing to parse through the minutiae that is a Court decision. There have been thousands and to find the few dozen listed within the text that serve to support the evolution of the constitutional interpretation is something Urofsky should be praised for doing. Clear, somewhat succinct, and highly educational, Urofsky wants the reader to follow him along the journey, while refusing to make sweeping generalizations and leaving the reader to swallow his assertions. I would surely read more of Urofsky's work, if only to whet my appetite for constitutional discussions.
Kudos, Mr. Urofsky for stunning me into a sense of complete awe as it relates to all things constitutional. I will recommend this to anyone who has a passion to learn about this subject and the patience to allow a slow and continual absorption.
Like/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/
August 30, 2016
A few years ago I started reading the biographies of Supreme Court Justices. I found their stories and that of the Court fascinating. Since then I have been reading about the Supreme Court and want to know more about the law. I found this book absolutely captivating; but I am sure the readers with law degrees will already know the material and if one is not interested they might be bored.
Melvin Urofsky traced the history of dissents from the founding era to the present. The author attempts to determine what value can be found in dissenting opinions. Urofsky states that dissents are an essential part of the “constitutional dialogue,” the device by which our nation has adapted to the changing times.
Urofsky reviews not only the Supreme Court but various State Supreme Courts and some foreign courts particularly France as it compares to the United States. The author also spends some time comparing the difference between the Supreme Court of Canada to that of the United States. Urofsky discusses in detail some of the famous dissents and some history of the Justices who wrote them. Some of the people he covers are John Marshall, Louis Brandeis, John Marshall Harlan, Hugo Black, Oliver Wendell Holmes, Stephen Breyer, Antonin Scalia, Ruth Bader Ginsberg, and Felix Frankfurter. Urofsky does provide a brief historical overview of the Court.
The book is elegantly written and meticulously researched. The author provided a balance between the people and the issues which helped maintain interest. I found the discussion about how various countries consider their laws most interesting. Urofsky is a law professor and historian; I have read a number of his books with great enjoyment.
I read this as an audiobook downloaded from Audible. Dan Woren does an excellent job narrating the book. Woren is an actor and voice over actor who is a well-known narrator of audiobooks.
Melvin Urofsky traced the history of dissents from the founding era to the present. The author attempts to determine what value can be found in dissenting opinions. Urofsky states that dissents are an essential part of the “constitutional dialogue,” the device by which our nation has adapted to the changing times.
Urofsky reviews not only the Supreme Court but various State Supreme Courts and some foreign courts particularly France as it compares to the United States. The author also spends some time comparing the difference between the Supreme Court of Canada to that of the United States. Urofsky discusses in detail some of the famous dissents and some history of the Justices who wrote them. Some of the people he covers are John Marshall, Louis Brandeis, John Marshall Harlan, Hugo Black, Oliver Wendell Holmes, Stephen Breyer, Antonin Scalia, Ruth Bader Ginsberg, and Felix Frankfurter. Urofsky does provide a brief historical overview of the Court.
The book is elegantly written and meticulously researched. The author provided a balance between the people and the issues which helped maintain interest. I found the discussion about how various countries consider their laws most interesting. Urofsky is a law professor and historian; I have read a number of his books with great enjoyment.
I read this as an audiobook downloaded from Audible. Dan Woren does an excellent job narrating the book. Woren is an actor and voice over actor who is a well-known narrator of audiobooks.
August 16, 2017
Urofsky has performed a critical public service in writing a book that is intended for the inquisitive layperson but demands attentive reading. That this book was so difficult points to a deficit in our public education system which emphacizes a “scorecard” approach to education rather than an inquiry into the “Why.” For example, we all know the Dredd Scott decision was awful. Urofsky points out how it was poor from a legal standpoint. He examines the very cogent arguments of two dissents. One was by Justice John McLean and the other by Justice Benjamin Harris. Harris and McLean pointed to Congress' constitutional authority to regulate the territories (a refutation to Taney's declaration that the Missouri Compromise was unconstitutional) and to the implicit understanding that anyone born in the United States was a citizen (Taney's opinion claimed that slaves were not citizens). The dissents were significant. Lincoln cited them frequently in his campaign speeches. After the Civil War, Section 1 of the 14th Amendment was enacted to explicitly confirm the citizenship issue.
Urofsky's book dispells many popular misconceptions about the Supreme Court. A unanimous decision is not always the best decision. Historically, split votes have been common (Urofsky provides statistics). Precedent (stare decisis) is only one of many factors weighed in arriving at a decision.
He cites some of the key contributions to Constitutional interpretation made by leading jurists. John Marshall Harlan's dissent in the Civil Rights Cases of 1883 argued that the reasoning behind the 13th Amendment needed to be considered as well as the bare text. On that basis, he argued that the freedoms were an empty promise unless Congress was authorized to protect those freedoms. (The majority held that the Civil Rights Act of 1875 was unconstitutional because Congress was not authorized to intervene in segregation cases, only in cases of state legislation that explicitly legalized segregation).
Oliver Wendell Holmes' dissent in Lochner v. NY (1905) argued that the Court could not interfere with state legislation unless the Constitution expressed a specific prohibition (The majority struck down a New York state health regulation that restricted the number of hours bakery employees could work; the legislation restricted their labor to under 60 hours per week). Urofsky cites this dissent as a significant contribution to the idea of judicial restraint.
Justice Louis Brandeis' dissent in Schaefer v. U.S. (1919) argued: “The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.” (Location 3994) Here, Brandeis not only recognized the importance of a "marketplace of ideas" to the success of a democracy, but the danger that wartime restrictions could easily be converted into peacetime restrictions. In his concurrence in Whitney v California (1928), Brandeis went even further and insisted that the “due process clause” protected the individual's Bill of Rights guarantees from state infringement as well as from Federal infringement (California state law restricted the right of freedom of speech).
The Supreme Court is scarcely recognizeable from its original form. Originally there were three justices. Its role as chief interpreter of the Constitution was only established in 1803. The custom of a majority opinion began under Chief Justice John Marshall. Prior to that time, each justice issued a separate opinion (in seriatum). It's interpretations have wrestled with the need to consider the changing context of social and economic conditions. On the other hand, its evolution has been painfully slow.
Although the book follows a chronological structure, certain thematic elements make the book easier to follow. First, of course, is the evolution of civil rights cases. Second is the shift from applying due process protections from property rights to individual rights. Third is the refinement of arguments in the area of freedom of speech.
Even with Urofsky's explanations, I found many of the arguments too subtle to follow, and this is not the first book on the Supreme Court that I have read. Hundreds of cases are cited, in the interest of completeness. This will no doubt please legal scholars, but can be bewildering to the rest of us. I found myself switching back and forth with Wikipedia to see if I was understanding correctly the point Urofsky was trying to make. This is definitely a book to be revisited frequently after reading more accessible books.
NOTE:
I read the Kindle edition of this book. It was disconcerting to find that only "Locations" were specified, and not pages. The notes are accumulated at the end, but not footnoted in the text.
Urofsky's book dispells many popular misconceptions about the Supreme Court. A unanimous decision is not always the best decision. Historically, split votes have been common (Urofsky provides statistics). Precedent (stare decisis) is only one of many factors weighed in arriving at a decision.
He cites some of the key contributions to Constitutional interpretation made by leading jurists. John Marshall Harlan's dissent in the Civil Rights Cases of 1883 argued that the reasoning behind the 13th Amendment needed to be considered as well as the bare text. On that basis, he argued that the freedoms were an empty promise unless Congress was authorized to protect those freedoms. (The majority held that the Civil Rights Act of 1875 was unconstitutional because Congress was not authorized to intervene in segregation cases, only in cases of state legislation that explicitly legalized segregation).
Oliver Wendell Holmes' dissent in Lochner v. NY (1905) argued that the Court could not interfere with state legislation unless the Constitution expressed a specific prohibition (The majority struck down a New York state health regulation that restricted the number of hours bakery employees could work; the legislation restricted their labor to under 60 hours per week). Urofsky cites this dissent as a significant contribution to the idea of judicial restraint.
Justice Louis Brandeis' dissent in Schaefer v. U.S. (1919) argued: “The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.” (Location 3994) Here, Brandeis not only recognized the importance of a "marketplace of ideas" to the success of a democracy, but the danger that wartime restrictions could easily be converted into peacetime restrictions. In his concurrence in Whitney v California (1928), Brandeis went even further and insisted that the “due process clause” protected the individual's Bill of Rights guarantees from state infringement as well as from Federal infringement (California state law restricted the right of freedom of speech).
The Supreme Court is scarcely recognizeable from its original form. Originally there were three justices. Its role as chief interpreter of the Constitution was only established in 1803. The custom of a majority opinion began under Chief Justice John Marshall. Prior to that time, each justice issued a separate opinion (in seriatum). It's interpretations have wrestled with the need to consider the changing context of social and economic conditions. On the other hand, its evolution has been painfully slow.
Although the book follows a chronological structure, certain thematic elements make the book easier to follow. First, of course, is the evolution of civil rights cases. Second is the shift from applying due process protections from property rights to individual rights. Third is the refinement of arguments in the area of freedom of speech.
Even with Urofsky's explanations, I found many of the arguments too subtle to follow, and this is not the first book on the Supreme Court that I have read. Hundreds of cases are cited, in the interest of completeness. This will no doubt please legal scholars, but can be bewildering to the rest of us. I found myself switching back and forth with Wikipedia to see if I was understanding correctly the point Urofsky was trying to make. This is definitely a book to be revisited frequently after reading more accessible books.
NOTE:
I read the Kindle edition of this book. It was disconcerting to find that only "Locations" were specified, and not pages. The notes are accumulated at the end, but not footnoted in the text.
April 3, 2025
A wise Constitutional law professor once said to me that no one pays attention to dissenting opinions until the laws being passed aren't going the way they'd hoped. Then they pay too much attention to dissenting opinions, hyper focusing on this one aspect and missing the bigger picture. He's not wrong, but he also didn't say what the bigger picture was that we should be focusing on, and I forgot to ask follow-up questions.
I have only been following dissenting opinions in recent years when the US Supreme Court, instead of expanding, had been rolling back Constitutional rights. No further comment on how it's done that or what rights in particular I think are affected or why I care. Whether or not I care makes little to no difference in things becoming law, so explaining my stance further feels like shouting into a void. But learning about how dissenting opinions work and their place in the system gives me a better grasp on supreme courts in general, the US Supreme Court in particular, and having this knowledge makes the whole thing seem a little less nebulous.
* * * * *
Update: April 2025
I've been trying to finish this book for over a year and have read all the parts relevant to my job. The rest? I'll save for some other time when I'm no longer living through one constitutional crisis after another.
I have only been following dissenting opinions in recent years when the US Supreme Court, instead of expanding, had been rolling back Constitutional rights. No further comment on how it's done that or what rights in particular I think are affected or why I care. Whether or not I care makes little to no difference in things becoming law, so explaining my stance further feels like shouting into a void. But learning about how dissenting opinions work and their place in the system gives me a better grasp on supreme courts in general, the US Supreme Court in particular, and having this knowledge makes the whole thing seem a little less nebulous.
* * * * *
Update: April 2025
I've been trying to finish this book for over a year and have read all the parts relevant to my job. The rest? I'll save for some other time when I'm no longer living through one constitutional crisis after another.
July 7, 2015
Dissent and the Supreme Court offers readers an indepth take at the look at the power of the dissent in the Supreme Court over the course of United States history. Many of the cases covered in the book aren't ones that are uncommon to most people who were educated in the United States and potentially lived in the Southern United States. In any case, though we know the outcomes of many of the cases of the past, only those well versed in the language of United States law and justice probably knew the deep meaning behind some of the rulings. I found it highly invigorating and greatly educational of seeing how the power of the dissent played apart in helping to shape the future decisions of some of the landmark cases in expanding property rights, social rights, and even rights encompassing the right to privacy.
Favorite parts of the book involved those dealing with the personalities of the justices both those who were on the right side of history and those who were on the wrong side of history. Many of the justices made good points for their viewpoints that it can be seen how hard it would have been, living at the time, to not have close verdicts. Even those who would be on the wrong side (wrong side defined as being in the side who would be eventually overturned, or even ones who had supported cases like Plessy v Ferguson, or in the most recent times, Roe v Wade, and supporting the constitutionality of American internment camps, a few homosexuality opinions). The book highlighted that most of this was all due to pushing forward an agenda of getting dialogue flowing between the judicial, legislative system, and then the public. What seemed great was that they end up going in the direction of what the public eventually favors publicly. Though at times, it seemed the opinions would at times go against allowing the public to decide and the law decide social matters (as it seemed Scalia stated several times in the more recent portions of the book, or even other justices in regards to expanding rights or tackling affirmative action and more).
Personally the social rights issues were just as intriguing as those dealing with translating the power of the government from a constitutional statement into one of practicality. Seeing how the various justices interpreted the constitution made for really provacative statements to be made for many issues. Favorite personalities highlighted for their interpretation (that is also included how they could find the rights to say privacy or more in the Bill of Rights, or Articles, or Amendments) would be Holmes, Black, Brandeis, Frankfurter, Harlan, who all contributed greatly to the dialogue.
Weaknesses would probably be the lack of much focus on the present time with perhaps O'Connor receiving much of the attention for present cases, Scalia dissents for a bit more, and brief mention of Sotomayor. However that is most likely due to difficulty being able to identify if any dissents in the present time carries weight. For most of the people in the book, their powerful dissents didnt really come into play until after they had left the Supreme Court.
Really good read and well worth the time. The writer doesnt even push a political agenda like a few other books try to do keeping it fact oriented and letting the justices speak for themselves. I thought it was good.
Favorite parts of the book involved those dealing with the personalities of the justices both those who were on the right side of history and those who were on the wrong side of history. Many of the justices made good points for their viewpoints that it can be seen how hard it would have been, living at the time, to not have close verdicts. Even those who would be on the wrong side (wrong side defined as being in the side who would be eventually overturned, or even ones who had supported cases like Plessy v Ferguson, or in the most recent times, Roe v Wade, and supporting the constitutionality of American internment camps, a few homosexuality opinions). The book highlighted that most of this was all due to pushing forward an agenda of getting dialogue flowing between the judicial, legislative system, and then the public. What seemed great was that they end up going in the direction of what the public eventually favors publicly. Though at times, it seemed the opinions would at times go against allowing the public to decide and the law decide social matters (as it seemed Scalia stated several times in the more recent portions of the book, or even other justices in regards to expanding rights or tackling affirmative action and more).
Personally the social rights issues were just as intriguing as those dealing with translating the power of the government from a constitutional statement into one of practicality. Seeing how the various justices interpreted the constitution made for really provacative statements to be made for many issues. Favorite personalities highlighted for their interpretation (that is also included how they could find the rights to say privacy or more in the Bill of Rights, or Articles, or Amendments) would be Holmes, Black, Brandeis, Frankfurter, Harlan, who all contributed greatly to the dialogue.
Weaknesses would probably be the lack of much focus on the present time with perhaps O'Connor receiving much of the attention for present cases, Scalia dissents for a bit more, and brief mention of Sotomayor. However that is most likely due to difficulty being able to identify if any dissents in the present time carries weight. For most of the people in the book, their powerful dissents didnt really come into play until after they had left the Supreme Court.
Really good read and well worth the time. The writer doesnt even push a political agenda like a few other books try to do keeping it fact oriented and letting the justices speak for themselves. I thought it was good.
June 17, 2015
Wait! This isn't really a history of dissent in the Supreme Court. It turns out that dissent is not just a way for Supreme Court justices to disagree with the majority -- it's a way of sharpening arguments on both sides, a way of preserving minority arguments for use in future cases, and even a way of changing the court's thinking on a case entirely.
Melvin Urofsky's book Dissent and the Supreme Court examines the various roles that dissent has played and gives many examples that show how dissent has added to Federal law and sometimes changed it completely.
We all know that the Court doesn't always get it right the first time around. But without dissent (and it's surprising just how many Chief Justices discouraged dissent in an effort to get unanimous opinions -- didn't it ever occur to them how much like the Soviet Union that sounds?) the arguments are inevitably weaker and less likely to hold up over time. There are many examples of dissents that made the majority return to their arguments to strengthen them, and even a couple examples of dissents that eventually won the majority over. Once the Supreme Court started working as a team rather than a collection of individual justices, dissent became a vital tool to make better arguments.
This is not a chronological book, rather a collection of major cases and the role that dissent played at the time and in cases years later. It's a pretty interesting look at Supreme Court history and you don't need to be a legal scholar, just someone who's curious about the Supreme Court and American law. I would have liked the book a bit more if there hadn't been so many times when Urofsky assumed the reader knows something, sometimes a well-known (to him) legal case, sometimes something more trivial, like the name of a movie that he refers to but never actually named. Usually Google came to the rescue, but I couldn't help thinking "why don't you just TELL me the name of the movie?"
Melvin Urofsky's book Dissent and the Supreme Court examines the various roles that dissent has played and gives many examples that show how dissent has added to Federal law and sometimes changed it completely.
We all know that the Court doesn't always get it right the first time around. But without dissent (and it's surprising just how many Chief Justices discouraged dissent in an effort to get unanimous opinions -- didn't it ever occur to them how much like the Soviet Union that sounds?) the arguments are inevitably weaker and less likely to hold up over time. There are many examples of dissents that made the majority return to their arguments to strengthen them, and even a couple examples of dissents that eventually won the majority over. Once the Supreme Court started working as a team rather than a collection of individual justices, dissent became a vital tool to make better arguments.
This is not a chronological book, rather a collection of major cases and the role that dissent played at the time and in cases years later. It's a pretty interesting look at Supreme Court history and you don't need to be a legal scholar, just someone who's curious about the Supreme Court and American law. I would have liked the book a bit more if there hadn't been so many times when Urofsky assumed the reader knows something, sometimes a well-known (to him) legal case, sometimes something more trivial, like the name of a movie that he refers to but never actually named. Usually Google came to the rescue, but I couldn't help thinking "why don't you just TELL me the name of the movie?"
June 5, 2024
Sounds pretty sleepy based on the title. And I was expecting some deeply arcane legal analyses of historical cases that would be beyond my non-legal mind.
In fact, this book was a highly readable and enjoyable history of the Supreme Court with an overriding theme of exploring how dissents from the majority in key cases eventually served to influence the Supremes to overturn precedent in future cases, or to influence Congress to rewrite unclear laws, or to influence the behavior of the executive branch, or most immediately, to guide lower courts on constitutional matters.
I've been keeping my eye out for a history book on the Supreme Court, and this one served quite nicely in that capacity.
In fact, this book was a highly readable and enjoyable history of the Supreme Court with an overriding theme of exploring how dissents from the majority in key cases eventually served to influence the Supremes to overturn precedent in future cases, or to influence Congress to rewrite unclear laws, or to influence the behavior of the executive branch, or most immediately, to guide lower courts on constitutional matters.
I've been keeping my eye out for a history book on the Supreme Court, and this one served quite nicely in that capacity.
December 22, 2015
My critique of the book is that it turned into a Constitutional Law class instead of an analysis on dissent. The digressions had to keep being brought back to the topic of dissent. That said, I wrote a column for our newspaper on dissent for Thanksgiving which really does outline why this is an important idea and an important book.
As the Thanksgiving holiday is coming to a close today, I thought I would throw in one last column about being thankful. I am thankful for disagreement and dissent. Our law has been formulated out of a contested disagreement. The process of dissenting is the civil interaction between opposing ideas in a legal forum. The decisions in the marbled halls of justice have real world implications, but the actual battle of ideas itself is bloodless. The same cannot always be said for the implementation of those ideas.
Here are a few dissents for which I am grateful.
“But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is “color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
This quote comes from Justice John Marshall Harlan in a dissent in 1896. The case was Plessy v. Ferguson. The majority ruled thirty years after the conclusion of the civil war that separate was equal and the law could segregate United States citizens on the basis of race. The vote was 7 to 1, with Harlan’s dissent being the sole voice for equality. His voice finally won out when Plessy was removed from applying to public schools in 1954 in Brown v. Board of Education and applied across the board to everyone in the Civil Rights Act passed by Congress in 1964. Harlan’s dissent didn’t become the law of the land until after I was born. I’m thankful he had the courage to speak out in 1896.
Just so we don’t get complacent in our belief that the United States is a land of liberty and freedom, the next dissent for which I am grateful comes from Justice Robert H. Jackson in Korematsu v. The United States in 1944:
“A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Justice Jackson’s words seem almost prophetic as we battle our fear of terrorism and see more and more people willing to sacrifice the Constitution on the altar of perceived safety. Justice Jackson’s dissent ought to be read before any “new” revocation of our rights to “keep us safe.” We need to remember that our country was completely capable of putting Japanese Americans in concentration camps, regardless of any wrongdoing and based solely on race. We are not so evolved that we can’t again make the same mistakes out of fear.
And as a final dissent for which I am grateful, Justice Louis Brandeis railing against the use of warrantless wiretaps in Olmstead v. United States:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
Brandeis proved prophetic when just under 40 years after his dissent, the Court found that a conversation in a phone booth was protected by the Fourth Amendment in Katz v. United States in 1967, again within my lifetime.
I am reminded that what many of us take for granted as our rights today came from vigilant Justices speaking out when they thought others were wrong about the law. I am grateful to the voices of dissent that have pushed our legal system to promulgates fairness and equality for everyone, not just the majority.
As the Thanksgiving holiday is coming to a close today, I thought I would throw in one last column about being thankful. I am thankful for disagreement and dissent. Our law has been formulated out of a contested disagreement. The process of dissenting is the civil interaction between opposing ideas in a legal forum. The decisions in the marbled halls of justice have real world implications, but the actual battle of ideas itself is bloodless. The same cannot always be said for the implementation of those ideas.
Here are a few dissents for which I am grateful.
“But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is “color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
This quote comes from Justice John Marshall Harlan in a dissent in 1896. The case was Plessy v. Ferguson. The majority ruled thirty years after the conclusion of the civil war that separate was equal and the law could segregate United States citizens on the basis of race. The vote was 7 to 1, with Harlan’s dissent being the sole voice for equality. His voice finally won out when Plessy was removed from applying to public schools in 1954 in Brown v. Board of Education and applied across the board to everyone in the Civil Rights Act passed by Congress in 1964. Harlan’s dissent didn’t become the law of the land until after I was born. I’m thankful he had the courage to speak out in 1896.
Just so we don’t get complacent in our belief that the United States is a land of liberty and freedom, the next dissent for which I am grateful comes from Justice Robert H. Jackson in Korematsu v. The United States in 1944:
“A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”
Justice Jackson’s words seem almost prophetic as we battle our fear of terrorism and see more and more people willing to sacrifice the Constitution on the altar of perceived safety. Justice Jackson’s dissent ought to be read before any “new” revocation of our rights to “keep us safe.” We need to remember that our country was completely capable of putting Japanese Americans in concentration camps, regardless of any wrongdoing and based solely on race. We are not so evolved that we can’t again make the same mistakes out of fear.
And as a final dissent for which I am grateful, Justice Louis Brandeis railing against the use of warrantless wiretaps in Olmstead v. United States:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
Brandeis proved prophetic when just under 40 years after his dissent, the Court found that a conversation in a phone booth was protected by the Fourth Amendment in Katz v. United States in 1967, again within my lifetime.
I am reminded that what many of us take for granted as our rights today came from vigilant Justices speaking out when they thought others were wrong about the law. I am grateful to the voices of dissent that have pushed our legal system to promulgates fairness and equality for everyone, not just the majority.
April 16, 2019
It's good and has lots of great knowledge to impart, but there are moments where the writer assumes previous knowledge the reader may not have, saying, for instance, "everyone is aware of the circumstances in the case of...".
While this books is a very specific genre and is probably written for a specific group of readers (historians, legal scholars, etc.), I think little explanation of cases one assumes everyone to know about, would be helpful.
Urofsky is an incredibly talented writer though, and keeps interest throughout the book. His organization in regards to cases and courts is superb, and I never felt as if I were missing something important that happened in one court or with a specific justice.
While this books is a very specific genre and is probably written for a specific group of readers (historians, legal scholars, etc.), I think little explanation of cases one assumes everyone to know about, would be helpful.
Urofsky is an incredibly talented writer though, and keeps interest throughout the book. His organization in regards to cases and courts is superb, and I never felt as if I were missing something important that happened in one court or with a specific justice.
May 14, 2022
Extremely disappointing. Much of the book merely rehashes a historiography that is by now extremely familiair. The author furthermore ignores decades of social science research on judicial decision making, inter court interactions and the relationship between various branches of government. This issue becomes laughable when he remarks on p. 414 that “that it would be difficult to determine when-or if-partisan consideration play a role in decision making.”
Why he uses the term dialogue is beyond me. The term has unnecessary positive connotations and is analytically weak. It’s used to cover anything judges do in relation to other judges. It does have all the hallmarks of an old fashioned legal scholar wary of engaging with empirical research but eager to give his work the veneer of scientific standing.
Why he uses the term dialogue is beyond me. The term has unnecessary positive connotations and is analytically weak. It’s used to cover anything judges do in relation to other judges. It does have all the hallmarks of an old fashioned legal scholar wary of engaging with empirical research but eager to give his work the veneer of scientific standing.
June 17, 2016
The book can be a little dense at times since he uses Latin legal terms and he cites one case after another. Despite that, I was fascinated by the history of the court and the way that dissents along with the actual decisions reflect the American way of life.
Tough going but definitely worth the slog.
Tough going but definitely worth the slog.
March 10, 2016
More like a 3.5.
Though I have read about it multiple times, the part where Marshall passes Blackmun a note saying "You was great" after the latter read his dissent in Bowers still gets to me. Yes, I am a huge dork.
Though I have read about it multiple times, the part where Marshall passes Blackmun a note saying "You was great" after the latter read his dissent in Bowers still gets to me. Yes, I am a huge dork.
May 29, 2022
How should the Supreme Court and other courts approach their decisions? Should there be one opinion without said opinion being connected to any specific justice or justices? Should the justices be free to write majority opinions, dissents, and concurrences? What’s best for the country? Are dissents just angry tirades? Do dissents matter? This book covers the evolution of how the court has approached these very questions. This book shows the place of dissent and its history in the United States.
In order to have a constitutional dialogue, dissents are necessary because they help to provide a different perspective of the the cases in question and they help to show the losing side that their voice was heard. Dissents also can be important to those in the future as they can be used as the foundation of majority opinions when what once was the minority opinion becomes the majority. Dissents must be done sparingly or they lose their power. When done effectively, history has shown that the very threat of a concurrence of dissent can shape the majority opinion. History will judge the place of dissents.
For a constitutional dialogue to be as inclusive as possible, it is clear that the justices must consider the external public sociocultural dialogue, but what also matters is the dialogue between the lower courts and the Supreme Court. This dialogue is happening with Congress, the President, the states, and the people. This dialogue has teaching moments. Dissents essential for democracy.
In order to have a constitutional dialogue, dissents are necessary because they help to provide a different perspective of the the cases in question and they help to show the losing side that their voice was heard. Dissents also can be important to those in the future as they can be used as the foundation of majority opinions when what once was the minority opinion becomes the majority. Dissents must be done sparingly or they lose their power. When done effectively, history has shown that the very threat of a concurrence of dissent can shape the majority opinion. History will judge the place of dissents.
For a constitutional dialogue to be as inclusive as possible, it is clear that the justices must consider the external public sociocultural dialogue, but what also matters is the dialogue between the lower courts and the Supreme Court. This dialogue is happening with Congress, the President, the states, and the people. This dialogue has teaching moments. Dissents essential for democracy.
June 10, 2017
This book was not a page-turner but surprisingly readable for essentially a history book. While there are some forward-looking predictions, based on prior eras of the Court, as to what might happen in the future, it apparently was written before the death of Justice Scalia. So really no one knows what might happen from here on out, even with Justice Gorsuch on the Court. Definitely recommended for law students or lawyers, or nerdy political types.
June 17, 2018
The legal arena operatests best when dissent is given a full voice. Urofsky gives a book that highlights the dissents in Supreme Court decisions that have had a profound influence on how we interpret the law. The opening pages that tell us about the power of dissent are the best of the book. The rest of the book focuses on specifics of the dissents. Some of this book will be best used by historians and law school professors.
August 24, 2021
Ok, I didn't actually finish this book (yet). I've been on a Supreme Court kick lately and this was a good read for that. However, there's just SO MUCH information about characters, history, law theory, etc. that it was hard to really absorb a lot of what I was listening to. That's not to say this book isn't good, it's just that a lot of it went over my head. Overall, very informative and I enjoyed learning about this topic.
March 13, 2018
Want a deeper understanding of the US Supreme Court? This is your book! This book provides a mostly non-partisan historical overview of the court and its evolution using dissents as the lens to view its changing position on many matters. You learn about the big cases, the justices, their process and how this has all evolved with time. Fascinating read!
June 24, 2020
The first 2/3rds of the book cover in a great history dissent in the Supreme Court. In the last third of the book he seems to go from historical overview into opinion and even politics. The coverage of Scalia is very one sided, at times asserting his dissents to be wrong and not sticking with his starting principle that the judges of the power of dissent aren’t those of the current era.
January 29, 2018
This is an excellent book that effectively illustrates the complex and changing nature of the Supreme Court. It is a dense and technical book at times but the author is able to hold it together around very precise writing.
January 19, 2019
I'll admit if you're not a legal person this book is going to be a bit much for you. Some of the legal arguments are rather above some people's heads. Nonetheless, this is a fantastic read for those folks who love some of the great jurists' dissenting opinions.
November 25, 2021
An excellent review of dissent writing on the US Supreme Court and the story of how many of the best written and reasoned dissents become majority opinions. All this from the past editor of the Supreme Court Historical Review.
October 4, 2017
Scholarly and thorough.
January 20, 2019
I think this was meant for the layperson, but I don’t comprehend how a layperson can fully grasp the importance of the many dissents Urofsky discusses without having first studied in considerable detail the majority opinions and their respective historical importance in our nation’s constitutional jurisprudence.
For those with the requisite base knowledge (basically, anyone who’s taken a constitutional law class), this book is tremendously rewarding and a fantastic supplement to understanding the constitutional dialogue that occurs both within and without our nation’s highest court.
For those with the requisite base knowledge (basically, anyone who’s taken a constitutional law class), this book is tremendously rewarding and a fantastic supplement to understanding the constitutional dialogue that occurs both within and without our nation’s highest court.
December 9, 2024
First ever legal book that I have ever read. I first read this in high school and then again after graduating college. He obviously has some bias on how he perceives many of the justices and certain rulings. However, we do all have biases and even if you disagree with the views, he does a spectacular job laying out this book clearly and spectacularly. I highly recommend this book to anyone who wants to learn more about the high court’s history. Great book!
March 7, 2018
OK I love Political Science and study of American governments especially the US Supreme Court. This book and Melvin Urofsky fits the bill so very nicely. It is not just about dissents and how some of them become majority opinions and thoughts, but it is a time in history and relevance to the other political institutions that brings it alive.
I learned so much about Harlan 1 and Harlan 2 and especially Harlan 1's dissent in the Civil Rights cases of 1883 which led to the separate but equal thoughts.
I learned so much about Harlan 1 and Harlan 2 and especially Harlan 1's dissent in the Civil Rights cases of 1883 which led to the separate but equal thoughts.
December 14, 2015
This is a very interesting look at the role of dissent on the Supreme Court. It surprised me how many dissenting opinions later became the majority opinion after significant time had passed. While I am aware of the well known cases whose decisions were reversed, there were so many other cases of which I was completely unaware. Dissent plays a crucial role in crafting the majority opinion, even if the majority appears to have dismissed the dissenting point of view. Before reading this book, I had no idea that the Supreme Court used to deliver their opinions seriatim, where each justice would deliver his opinion one at a time rather than having one justice write the opinion of the majority with justices who dissented writing their own dissents. I also found it interesting that the real power of dissent is when decades after the dissent, sometimes long after the dissenting justice has died, his view becomes the majority opinion. I always enjoy hearing the Supreme Court decisions as they are announced in June. I find it fascinating that very educated constitutional scholars can look at the same evidence and argument, yet reach disparate opinions. Of course, if the decisions were so obvious, the cases wouldn't make it to the US Supreme Court in the first place.
December 25, 2016
This book explores the way separate opinions, most notably dissents, shape the Constitutional dialogue and have, in the past, proven prophetic. It focuses mainly on those dissents that would, with time, become the law of the land.
Starting with the Founding era and spanning the history of the court, Melvin Urofsky (the author of the book Louis D. Brandeis: A Life) discussed such topics as civil rights, substantive due process, privacy, the right of consenting adults to participate in intimate activity, wiretapping, and freedom of speech and those dissents which, though premature, were correct and on the right side of history.
I enjoyed the read, although it was difficult at times to ignore the blatant (although understandable, considering his background) love for Brandeis and dislike for other justices, such as Justice Frankfurter. It was never too distracting, and Professor Urofsky at all times presented the material in a way that was fresh and engaging.
I would recommend this book to anyone who is interested in the history of the Court and its constitutional jurisprudence. Now I'm off to read his biography of Justice Brandeis.
Starting with the Founding era and spanning the history of the court, Melvin Urofsky (the author of the book Louis D. Brandeis: A Life) discussed such topics as civil rights, substantive due process, privacy, the right of consenting adults to participate in intimate activity, wiretapping, and freedom of speech and those dissents which, though premature, were correct and on the right side of history.
I enjoyed the read, although it was difficult at times to ignore the blatant (although understandable, considering his background) love for Brandeis and dislike for other justices, such as Justice Frankfurter. It was never too distracting, and Professor Urofsky at all times presented the material in a way that was fresh and engaging.
I would recommend this book to anyone who is interested in the history of the Court and its constitutional jurisprudence. Now I'm off to read his biography of Justice Brandeis.
December 27, 2015
Important, and fascinating exploration of constitutional dialogue over time.
This book surprised me. I thought it'd be a collection of dissent vignettes, quick and interesting. What you find instead is a fantastically researched exploration of how the Court has changed over the years. A study of how justices worked to husband and spend their credibility, and how the Court has evolved as an institution. All viewed through the framing device of the dissent.
A slow read, but one that's worth the time.
This book surprised me. I thought it'd be a collection of dissent vignettes, quick and interesting. What you find instead is a fantastically researched exploration of how the Court has changed over the years. A study of how justices worked to husband and spend their credibility, and how the Court has evolved as an institution. All viewed through the framing device of the dissent.
A slow read, but one that's worth the time.
November 29, 2015
This title gave me a good look at the Supreme Court and how it functions.-how the court's opinions and role has changed over time through the study of the dissents of the justices. I'd have students look over the sections on the Dred Scott decision and the development of free speech in the post World War II world.
May 4, 2016
Goodness, very long and super well researched. More than a primer on Con Law...a through look at the past, present and future of the Supreme Court, emphasizing dissenting opinions. I enjoyed reading about how the Supremes find case facts to best fit their legal reasoning and how they broker deals within the court to build consensus.
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