Book Review: Dissent and the Supreme Court

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 90 Pg. 87
• Pages: 87

Book Review: Dissent and the Supreme Court90 CBJ 87Connecticut Bar JournalNovember, 2017

James E. Wildes, J. [*]

Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue – Melvin Urofsky, Pantheon Books, a division of Penguin Random House, LLC, New York, NY, 2015. 528 pages.

The value of a dissent can be described in many ways. Melvin Urofsky, a professor emeritus of history at Virginia Commonwealth University and former chair of its history department, believes that Chief Justice Charles Evans Hughes said it best when he explained: "A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."^[1] As everyone knows, there are shining and memorable dissents, and there are dissents lost forever to the dustpan of history. This point is not lost on Urofsky, as he readily concedes that not all dissents are equal in Dissent and the supreme court. Urofsky mostly focuses on canonical dissents that have become part of the "constitutional dialogue." As defined by Urofsky, the phrase "constitutional dialogue" includes more than the debates among Supreme Court justices, it also includes discussions between members of Congress, the executive branch, administrative agencies, state and federal courts, the legal academy and the public.

For the most part, Urofsky takes a chronological approach to exploring the history of the Supreme Court and its most influential dissents. Urofsky's use of a wide lens allows him to touch upon many aspects of Supreme Court history. He also knows when to stop the narrative clock and add biographical sketches of many of the justices. He begins by taking the reader back to the early days of the Supreme Court where the practice was to issue seriatim opinions, wherein justices delivered separate opinions. When Connecticut's Oliver Ellsworth was the Chief Justice of the Supreme Court he attempted to reduce the number of seriatim opinions. However, it was not until John Marshall became Chief Justice that the custom of speaking in one voice become an enduring practice. This practice was not without its critics; President Thomas Jefferson was irked by the practice. Of course, Jefferson, as Urofsky explains, was also generally annoyed by the appointment of Marshall and other judges by his predecessor, President John Adams. Urofsky recounts Jefferson's ill-conceived and failed plan to remove some Federal judges by impeaching them. In justification of his plan to remove the Federalist justices, Jefferson quipped that "few died and none retired."

Urofsky rightfully refers to Justice John Marshal Harlan as the first great dissenter. Harlan is best known for his dissent in Plessy v. Ferguson,^[2] where he memorably stated that, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Urofsky notes that Harlan, notwithstanding his soaring dissent, was a man of his time in his patrician and racist view of African-Americans. Urofsky adds that despite Plessy's holding of "separate but equal" being overruled by Brown v. Board of education^[3] and the legislative success of the civil rights movement, questions of race continue to return to the Court. Urofsky also comments on what he considers the irony of Chief Justice John Roberts' opinion in Parents involved in community schools v. Seattle school District no. 1,^[4] where Roberts refers to a "color-blind Constitution" in striking down the voluntary use of race to achieve the benefits of diversity and to end racial isolation.

Any book...