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From the admired judicial authority, author of Louis D. Brandeis (RemarkableAnthony Lewis, The New York Review of Books; MonumentalAlan M. Dershowitz, The New York Times Book Review), Division and Discord, and Supreme DecisionsMelvin Urofskys 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 countrys 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 Courts 225-year history. He discusses in detail the role the Supreme Court has played in helping to define what the Constitution means, how the Courts 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 Brandeiss 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 Constitutionin 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 Taneys 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 Courtfree speech, race, judicial appointment, and rights of the accusedand 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. Wadethe Dred Scott of the modern eradissent 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 liberalsWilliam Brennan and Thurgood Marshallin 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 doesnt grow and adapt, it atrophies and dies, and if it does, so does the democratic society it has supported. Dissenton the Court and off, Urofsky argueshas been a crucial ingredient in keeping the Constitution alive and must continue to be so.
(With black-and-white illustrations throughout.)