Dissent and the Supreme Court

June 8, 2015
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.

Starred review from July 1, 2015
A distinguished legal historian looks at how dissents have influenced our understanding of the Constitution. Mindful of the institution's authority and prestige, chief justices have always preferred that the Supreme Court speak with one voice. But disagreements-hardly surprising among powerful personalities asked to navigate the most difficult legal issues-have always been a part of the jurisprudence. While it's true that most dissents are eminently forgettable, some have contributed mightily to our ongoing Constitutional dialogue. The dissenters address first, of course, the majority, pointing out weak arguments or misunderstood facts; second, the bench, bar, and legal academy; third, the other branches of government; and finally, the public and posterity, all in an attempt to move the law in a direction the majority declines to follow. In this scholarly yet wholly accessible treatment, Urofsky (Emeritus, Law, Public Policy, History/Virginia Commonwealth Univ.; Louis D. Brandeis: A Life, 2009, etc.) chronologically examines notable dissents and dissenters in the court's history and considers the phenomenon from all angles, including how even the threat of a dissent can help shape the majority opinion. He supplies illuminating discussions of John Marshall Harlan, Oliver Wendell Holmes, and Louis Brandeis, great dissenters whose opinions "carried the seeds for growth and the future transformation of judicial doctrine." Readers will appreciate Urofsky's resurrection of some lesser-known justices-Stephen Field, Wiley Rutledge-and their contributions to our Constitutional discourse. Also noteworthy is the author's dissection of the rhetorical combat among Franklin Roosevelt appointees, his tracking of the evolving understanding of privacy, affirmative action, and sexual orientation from the Warren through the Roberts court, and his treatment of the "permanent dissents" on capital punishment cases. Whether it's Jackson on wartime internment or Black on the right to counsel, the very best dissents constitute, in one scholar's words, "buried ammunition for future generations to unearth when the time comes." A lifetime of scholarship and an elegant pen combine for an outstanding read.

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October 15, 2015
These days, four out of five Supreme Court decisions include one or more dissenting opinions. Legal scholar Urofsky examines the history of the court from the perspective of its dissenting opinions, and looks at the compelling reasons why the court has rarely spoken with a single voice, however much the chief justices, John Roberts being the latest, have wanted it. Despite its role as interpreter of the Constitution, the Supreme Court has not always made the right decision in accordance with democratic ideals, most notably in the Plessy v. Ferguson decision upholding separate but equal public accommodations. Urofsky explores the dissenting opinions in the Plessy case and many others. He analyzes the historical context at the time of the decisions and later, when the dissenting opinions held sway and formed the basis for later judgment in the opposite direction, including Louis Brandeis' dissent about wiretapping presaging the court's position four decades later. This is an insightful look at dissents as dialogues between the justices that reflect broader dialogues among citizens on the controversial issues of our time.(Reprinted with permission of Booklist, copyright 2015, American Library Association.)

Starred review from August 1, 2015

Urofsky (law & public policy, emeritus, history, Virginia Commonwealth Univ.; Louis D. Brandeis: A Life) has written an important and impressive analysis of the role of Supreme Court dissents in shaping legal history. Thus, the author emphasizes that dissents function as "constitutional dialogue" or dialectic, contributing to the evolution of the law. Consequently, today's opposition may be tomorrow's majority decision and the rule of law. Urofsky explores the trends in court decisions, from seriatim decisions in which each justice issues an opinion to unified majority opinions and decisions in which justices frequently issue dissents. Along the way, he examines the role of dissents in a number of landmark cases, such as Lochner v. New York, the Dred Scott decision, Olmstead v. United States, and In re Yamashita. Moreover, he provides insight into the rationale employed by great justices such as John Marshall, Oliver Wendell Holmes Jr., and Louis D. Brandeis. VERDICT A sine qua non for historians and legal scholars who study works such as Bernard Schwartz's A History of the Supreme Court. [See Prepub Alert, 4/30/15.]--Lynne Maxwell, West Virginia Univ. Coll. of Law Lib., Morgantown

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May 15, 2015

Renowned constitutional scholar Urofsky (Louis D. Brandeis) here explores the issue of dissent in the Supreme Court, showing that its majority opinion hasn't always been right and that the dissenting opinion can finally (if slowly) prevail. After six decades, for instance the court adopted the dissenting opinion of the first Justice Harlan in Plessy v. Ferguson (1896)--that segregation on the basis of race violated the Constitution--when issuing its decision in Brown v. Board of Education (1954).

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May 15, 2015

The New York Times best-selling author of unexpected works on American history and culture (e.g., The Wordy Shipmates), Vowell chronicles the 1824 return to the America of Revolutionary War hero the Marquis de Lafayette. Contentious Americans were on the road to civil war, but Lafayette was a hero to everyone; 80,000 people flocked to New York harbor to see him. With a 125,000-copy first printing.

Copyright 2015 Library Journal, LLC Used with permission.

August 1, 2015

Urofsky (law & public policy, emeritus, history, Virginia Commonwealth Univ.; Louis D. Brandeis: A Life) has written an important and impressive analysis of the role of Supreme Court dissents in shaping legal history. Thus, the author emphasizes that dissents function as "constitutional dialogue" or dialectic, contributing to the evolution of the law. Consequently, today's opposition may be tomorrow's majority decision and the rule of law. Urofsky explores the trends in court decisions, from seriatim decisions in which each justice issues an opinion to unified majority opinions and decisions in which justices frequently issue dissents. Along the way, he examines the role of dissents in a number of landmark cases, such as Lochner v. New York, the Dred Scott decision, Olmstead v. United States, and In re Yamashita. Moreover, he provides insight into the rationale employed by great justices such as John Marshall, Oliver Wendell Holmes Jr., and Louis D. Brandeis. VERDICT A sine qua non for historians and legal scholars who study works such as Bernard Schwartz's A History of the Supreme Court. [See Prepub Alert, 4/30/15.]--Lynne Maxwell, West Virginia Univ. Coll. of Law Lib., Morgantown

Copyright 2015 Library Journal, LLC Used with permission.