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.)
Publishers Weekly® Reviews
- Reviewed in: Publishers Weekly, page .
- Review Date: 2015-06-08
- Reviewer: Staff
Well into the 20th century, the U.S. Supreme Court issued unanimous single opinions in over 90% of its cases. By 1952, only 22% of the Court’s opinions were unanimous, a division that continues today. Critics contend that lack of unanimity leads to legal uncertainty and undermines the Court’s institutional authority. Urofsky (Louis D. Brandeis), however, disagrees, writing that while the vast majority of dissents are forgotten, a select few prove “canonical or prophetic.” To take one significant example, John Marshall Harlan’s lone dissent against the “separate but equal” Plessy v. Ferguson (1896) ruling eventually carried the day in Brown v. Board of Education (1954), when the Court unanimously struck down racial segregation in public education. Another famous dissent was by Louis Brandeis in Olmstead v. United States (1928), where the majority ruled that a warrantless wiretap did not violate the Fourth Amendment. Brandeis’s opinion in favor of a constitutional right of privacy—“the right to be let alone”—eventually prevailed and now forms the foundation of the Court’s search-and-seizure jurisprudence. For students of the law, in school or out, with a keen interest in Supreme Court history, this book offers a welcome perspective on a vibrant, ongoing constitutional dialogue. (Oct.)