Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue
Melvin I. Urofsky
Reviewed by Allen P. Mendenhall
In Dissent and the Supreme Court, Melvin I. Urofsky, a professor emeritus of history at Virginia Commonwealth University and the author of a celebrated biography of Justice Louis Brandeis,1 explores the role of dissent in the shaping of our "constitutional dialogue,"a phrase that refers not just to cases handed down by our nation's highest courts but to "discussions between and among jurists, members of Congress, the executive branch, administrative agencies, state and lower federal courts, the legal academy, and last, but certainly not least, the public."2
Among the epigraphs opening the book is a quotation from Irving Dilliard: "Judicial dissent [is] wholly necessary. Dissent is no less a requirement in our legal system than it is in our political system. Historically, dissent is the way a prophecy is first heard."3 The choice of the word prophecy is striking in light of Oliver Wendell Holmes, Jr.'s definition of law as"[t]he prophecies of what the courts will do in fact, and nothing more pretentious."4 Holmes opined that our "body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years," consisted of "the scattered prophecies of the past upon the cases in which the axe will fall." Holmes, who may have been an atheist, did not employ the term prophecy in the sense of a spiritual gift or divinely inspired word. He rather meant the ability to forecast or predict tractable outcomes based on recorded history, tested norms and lived experience. Dissents that reach beyond their moment to capture the prevailing ethos or attitude of some later moment can become prophesies, so defined, by their future vindication.
By multiplying the possible applications and perceptions of particular rules or principles, dissents also diversify the options for future judges and justices. Dissents provide practical alternatives and point out different, possibly better, approaches to pressing issues. Most dissents are forgotten, but some become"canonical"or"prophetic."6 Just as t he several holdings of our highest courts combine to offer integrated direction to judges and justices confronted with concrete problems in need of urgent resolution, so dissents, with...