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I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases
For the first time, a collection of dissents from the most famous Supreme Court cases
If American history can truly be traced through the majority decisions in landmark Supreme Court cases, then what about the dissenting opinions? In issues of race, gender, privacy, workers' rights, and more, would advances have been impeded or failures rectified if the dissenting opinions were in fact the majority opinions?
In offering thirteen famous dissents-from Marbury v. Madison and Brown v. Board of Education to Griswold v. Connecticut and Lawrence v. Texas , each edited with the judges' eloquence preserved-renowned Supreme Court scholar Mark Tushnet reminds us that court decisions are not pronouncements issued by the utterly objective, they are in fact political statements from highly intelligent but partisan people. Tushnet introduces readers to the very concept of dissent in the courts and then provides useful context for each case, filling in gaps in the Court's history and providing an overview of the issues at stake. After each case, he considers the impact the dissenting opinion would have had, if it had been the majority decision.
Lively and accessible, I Dissent offers a radically fresh view of the judiciary in a collection that is essential reading for anyone interested in American history.
If American history can truly be traced through the majority decisions in landmark Supreme Court cases, then what about the dissenting opinions? In issues of race, gender, privacy, workers' rights, and more, would advances have been impeded or failures rectified if the dissenting opinions were in fact the majority opinions?
In offering thirteen famous dissents-from Marbury v. Madison and Brown v. Board of Education to Griswold v. Connecticut and Lawrence v. Texas , each edited with the judges' eloquence preserved-renowned Supreme Court scholar Mark Tushnet reminds us that court decisions are not pronouncements issued by the utterly objective, they are in fact political statements from highly intelligent but partisan people. Tushnet introduces readers to the very concept of dissent in the courts and then provides useful context for each case, filling in gaps in the Court's history and providing an overview of the issues at stake. After each case, he considers the impact the dissenting opinion would have had, if it had been the majority decision.
Lively and accessible, I Dissent offers a radically fresh view of the judiciary in a collection that is essential reading for anyone interested in American history.
229 pages, Paperback
First published April 15, 2008
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About the author
Mark V. Tushnet
94 books14 followersA specialist in constitutional law and theory, including comparative constitutional law, Mark Victor Tushnet is William Nelson Cromwell Professor of Law, Emeritus at Harvard Lew School. Tushnet graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall. His research includes studies of constitutional review in the United States and around the world, and the creation of other "institutions for protecting constitutional democracy." He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s.
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Displaying 1 - 9 of 9 reviews
January 14, 2012
Despite – or perhaps in part because he is a professor of law at Harvard, Tushnet’s book on Supreme Court dissents is far less compelling than it could be. First of all, Tushnet seems to be a novice at editing, and the integrity of the dissents themselves are compromised with what Tushnet himself says is heavy editing, so the reader is left unsure how much of the dissent is original and what is edited, because aside from ellipses marks, there is no indication of where edits have been made. Compounding the problem is Tushnet himself, who gives poor introductions to many of the dissents and who bestows us with his opinion of how things might have turned out if the dissent had been the majority. Tushnet assures us that history would mostly be the same, and so the impact of a Supreme Court dissent or decision is really not worth breaking a sweat over. Tushnet clearly didn’t, after all.
Despite the poor editing, the poor economics analysis (Mr. Tushnet, perhaps I should break in to your field with as little experience as you have in mine; maybe I’ll get a book deal out of it), reading the dissents – where they appeared – was itself interesting. There are sixteen cases considered, but not all the “opposing opinions” are actually dissents or even written by Supreme Court Justices. As for what constitutes a “landmark” Supreme Court case, Tushnet does not see fit to include Roe v. Wade or even reference Justice Clarence Thomas’ dissent arguing that federal law should not trump state medical marijuana. Tushnet does point out it is hard to predict which Supreme Court cases or dissents will really matter in the long run, but perhaps Tushnet would have produced a better collection if he had not tried to be a fortune teller and instead focused on truly controversial issues, in the past and in the present.
Where the dissents appeared, some were compelling, others not; some were verbose and took eight pages to say what could be said in three, as lawyers may be wont to do; some were truly visionary. Justice Harlan’s dissent on Plessy v. Ferguson falls in this category, as does Justice McReynolds dissent on National Labor Relations Board v. Jones & Laughlin, though the strongest and most voracious dissent in favor of individual liberty comes in Korematsu v. United States, by Justice Murphy – an issue more Americans should consider in the light of our present government.
However, as a collection of dissents, the book falls short. The reader would be better off finding them online for herself.
Despite the poor editing, the poor economics analysis (Mr. Tushnet, perhaps I should break in to your field with as little experience as you have in mine; maybe I’ll get a book deal out of it), reading the dissents – where they appeared – was itself interesting. There are sixteen cases considered, but not all the “opposing opinions” are actually dissents or even written by Supreme Court Justices. As for what constitutes a “landmark” Supreme Court case, Tushnet does not see fit to include Roe v. Wade or even reference Justice Clarence Thomas’ dissent arguing that federal law should not trump state medical marijuana. Tushnet does point out it is hard to predict which Supreme Court cases or dissents will really matter in the long run, but perhaps Tushnet would have produced a better collection if he had not tried to be a fortune teller and instead focused on truly controversial issues, in the past and in the present.
Where the dissents appeared, some were compelling, others not; some were verbose and took eight pages to say what could be said in three, as lawyers may be wont to do; some were truly visionary. Justice Harlan’s dissent on Plessy v. Ferguson falls in this category, as does Justice McReynolds dissent on National Labor Relations Board v. Jones & Laughlin, though the strongest and most voracious dissent in favor of individual liberty comes in Korematsu v. United States, by Justice Murphy – an issue more Americans should consider in the light of our present government.
However, as a collection of dissents, the book falls short. The reader would be better off finding them online for herself.
June 6, 2019
The base cases in this brief book are familiar, the dissenting opinions less so. In an era when settled case law is being challenged again, it behooves citizens to be familiar with these legal principles.
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August 12, 2019Nothing screams "I'm excited about law school" quite like listening to this audiobook. Would recommend!
December 3, 2023
I abandon this work at the halfway point, with this thought: why bother writing a book about the supposedly great dissents, if none of them mattered very much? Because that is the take-away idea for all the dissents I have waded through so far: any sense of moral outrage ringing down through the ages is washed away by the author’s cold water of historical inevitablism. The “Loughner” dissent says that the SC should not overturn legislation just because the justices themselves believe it to be unwise, and they are not constituted to defend a particular economic theory. That’s good stuff, expressed in the dissent with great power and cogency, but Tushnet airily waves away any historical significance by saying the court was trending towards accepting government regulation anyway, much in the same way he asserts (without evidence) that slavery itself was destined to die out of its own accord.
So Tushner promises “great opposing opinions,” and delivers on the promise by printing the words of those opinions, but then invariably goes on to say “nyah, whatever.”
So Tushner promises “great opposing opinions,” and delivers on the promise by printing the words of those opinions, but then invariably goes on to say “nyah, whatever.”
June 2, 2020
Law /supreme court statements is much more interesting and readable than I would have guessed. All of what 25 year old me might have said and thought was clever is right there (i.e. laws are just made up, law is just politics in disguise etc) and said openly and more cleverly. There are some literalist judges that made me proud to be an 'autist', like Hugo Black, and I'll remember Justice Marshall Harlan's supreme callouts of racism in his Plessy v Furgeson dissent and civil rights dissents. I also appreciated it when a justice says "I think this law is silly [but also I can't find anything in the constitution to void it, despite how much I would like to]"
A bit better understanding of some historical stuff, like current gerrymandering issues are from the ruling of Baker v Carr in 1962 to fix a (maybe worse?) issue of mismatched voter regions.
I didn't realize i liked it this much until this review.
A bit better understanding of some historical stuff, like current gerrymandering issues are from the ruling of Baker v Carr in 1962 to fix a (maybe worse?) issue of mismatched voter regions.
I didn't realize i liked it this much until this review.
January 13, 2009
An excellent book on Constitutional Law and at the same time on general issues with government, policy, social movements, and rights. Law Professor Mark Tushnet explores the meaning and the context of 16 famous Supreme Court cases and their legacy through opposing opinions.
Each chapter is introduced with a background for the issues, followed by the mostly unabridged opinion, and closed with follow up remarks on the later impact and importance of the decision and the dissent. I was at first surprised to find Tushnet "underselling" the value of the dissents, and sometimes the rulings, often claiming that the impact was minor in contributing to major events and issues, such as the Civil War, civil rights, segregation, Free Speech, the Great Depression, Japanese internment camps, prayer in school, birth control, and homosexuality.
As he explains in the Introduction, Tushnet advocates for what he calls Popular Constitutionalism, in which the public is more aware of an active about Constitutional issues, and in which social-political power ("constraints"), not the Supreme Court, should be the force to shape our laws. He has identified himself publicly as "socialist"; while the books has clear progressive leanings, Tushnet provides a fair and balanced account of the opinions he surveys. I think this is overall an admirable effort to get the public more aware and involved in law and politics without being preachy or pushing for specific policy. Furthermore, he explores some of the less obvious issues with making court rulings to show why court rulings are not so cut and dry.
To clarify a minor issue, not every opinion is proper dissent: Justice Gibson commented on the 1803 Marbury v. Madison on a separate separate case two decades later; President Andrew Jackson wrote a letter to Senate with the veto of the bill for a second Bank of the United States, mostly in response to McCulloch v. Maryland claiming the Supreme Court overstepped their ground in that case; Justice Jackson's memorandum supporting Brown v. Board of Education, though not a dissent at all, was included because it showed a different perspective than Justice Warren submitted for the official record (in fact the memorandum was not made public until 1988). Justice Brandeis felt compelled to write his own concurring opinion for Whitney v. California, included both to provide an additional perspective on First Amendment interpretation and for its recognized status as a convincing and powerfully worded court opinion.
The cases reviewed:
1. Marbury v. Madison, 1803
2. McCulloch v. Maryland, 1819
3. Dred Scot v. Sanford, 1857
4. The Civil Rights Cases, 1883
5. Plessy v. Ferguson, 1896
6. Lochner v. New York, 1905
7. Whitney v. California, 1927
8. National Labor Relations Board v. Jones & Laughlin Steel Corp. , 1937
9. Korematsu v. United States, 1944
10. Goesaert v. Cleary, 1948
11. Brown v. The Board of Education, 1954
12. Baker v. Carr, 1962
13. Abington School District v. Schempp, 1963
14. Griswold v. Connecticut, 1965
15. Morrison v. Olson, 1988
16. Lawrence v. Texan, 2003
The court opinions, as you would expect, are often lengthy and hard to digest, but the language is not too technical. In fact, I was pleasantly surprised by how clear and readable most of the text was. Strongly recommended for the general public with at least a high school reading level, and of course to all law and political science students.
Each chapter is introduced with a background for the issues, followed by the mostly unabridged opinion, and closed with follow up remarks on the later impact and importance of the decision and the dissent. I was at first surprised to find Tushnet "underselling" the value of the dissents, and sometimes the rulings, often claiming that the impact was minor in contributing to major events and issues, such as the Civil War, civil rights, segregation, Free Speech, the Great Depression, Japanese internment camps, prayer in school, birth control, and homosexuality.
As he explains in the Introduction, Tushnet advocates for what he calls Popular Constitutionalism, in which the public is more aware of an active about Constitutional issues, and in which social-political power ("constraints"), not the Supreme Court, should be the force to shape our laws. He has identified himself publicly as "socialist"; while the books has clear progressive leanings, Tushnet provides a fair and balanced account of the opinions he surveys. I think this is overall an admirable effort to get the public more aware and involved in law and politics without being preachy or pushing for specific policy. Furthermore, he explores some of the less obvious issues with making court rulings to show why court rulings are not so cut and dry.
To clarify a minor issue, not every opinion is proper dissent: Justice Gibson commented on the 1803 Marbury v. Madison on a separate separate case two decades later; President Andrew Jackson wrote a letter to Senate with the veto of the bill for a second Bank of the United States, mostly in response to McCulloch v. Maryland claiming the Supreme Court overstepped their ground in that case; Justice Jackson's memorandum supporting Brown v. Board of Education, though not a dissent at all, was included because it showed a different perspective than Justice Warren submitted for the official record (in fact the memorandum was not made public until 1988). Justice Brandeis felt compelled to write his own concurring opinion for Whitney v. California, included both to provide an additional perspective on First Amendment interpretation and for its recognized status as a convincing and powerfully worded court opinion.
The cases reviewed:
1. Marbury v. Madison, 1803
2. McCulloch v. Maryland, 1819
3. Dred Scot v. Sanford, 1857
4. The Civil Rights Cases, 1883
5. Plessy v. Ferguson, 1896
6. Lochner v. New York, 1905
7. Whitney v. California, 1927
8. National Labor Relations Board v. Jones & Laughlin Steel Corp. , 1937
9. Korematsu v. United States, 1944
10. Goesaert v. Cleary, 1948
11. Brown v. The Board of Education, 1954
12. Baker v. Carr, 1962
13. Abington School District v. Schempp, 1963
14. Griswold v. Connecticut, 1965
15. Morrison v. Olson, 1988
16. Lawrence v. Texan, 2003
The court opinions, as you would expect, are often lengthy and hard to digest, but the language is not too technical. In fact, I was pleasantly surprised by how clear and readable most of the text was. Strongly recommended for the general public with at least a high school reading level, and of course to all law and political science students.
Read
July 14, 2017This book tells less of an over-arching story, but instead showcases some of the greatest dissenting opinions in the history of the Supreme Court. The book goes from case to case, highlighting dissenting opinions which would make waves in later history of the Court. Often fiery in language, these are the opinions that showcase just why a Justice would dissent in a case, and how important dissention can be.
October 17, 2015
I became a lawyer because of the compelling language of the legal cases I studied in my criminal justice classes in undergrad. So when I came across this book it appealed to the same aspects of my legal instincts. Some of the cases and opinions in this book were more interesting than others and I think spoke as much to the author's political viewpoints as to the history of Constitutional law in this country (but that is often the case with such collections).
July 1, 2008
Full disclosure: I work for Beacon Press. However, I only highlight books on Goodreads that I've actually read and enjoyed.
A fun, readable, and informative look at a handful of important Supreme Court decisions and how those who disagreed with the rulings influenced politics, society, and the courts.
A fun, readable, and informative look at a handful of important Supreme Court decisions and how those who disagreed with the rulings influenced politics, society, and the courts.
Displaying 1 - 9 of 9 reviews