Dissent and the Supreme Court

Its Role in the Court's History and the Nation's Constitutional Dialogue

By: Melvin I. Urofsky

Narrated by: Dan Woren

Length: 19 hrs and 23 mins

Publisher's summary

From the admired judicial authority, author of Louis D. Brandeis (“Remarkable”—Anthony Lewis, The New York Review of Books; “Monumental”—Alan M. Dershowitz, The New York Times Book Review), Division and Discord, and Supreme Decisions—Melvin Urofsky’s 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 country’s 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 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.

©2015 Melvin I. Urofsky (P)2015 Random House Audio

Critic reviews

“A wide-ranging and intriguing study of how the justices of the United States Supreme Court have dissented from majority opinions and how we should think about them . . . Invaluable . . . Creative and well-researched.” —Linda Przybyszewski, American Journal of Legal History

“Brilliant . . . Urofsky’s expertise as a historian and student of the Supreme Court brings depth and richness to his treatment of this fascinating subject . . . A good read for those who find the workings of the Court of special interest.” —Ronald Goldfarb, Washington Lawyer

“One of the nation’s great legal historians . . . masterfully recounts the history of dissent on the court, from its early days, when dissents were rare and strongly discouraged, to the modern era, when they often outnumbered majority opinions. —David Cole, The Washington Post

In some ways disturbing

I liked this book because the subject is critical to understand our current situation. Fill in your own blank for "current situation". What made it even better is that I couldn't tell which side ( liberal or conservative) the professor took until the very last chapter, which unfortunately is unusual for law professors who write books.

This is a fantastic, heavy read

I LOVE this book. I've taken a long time to get through it-if I was actually reading it, it would be so dog eared and highlighted! Such incredible research went into the writing of this book. Anyone who is interested in the Supreme Court should listen to this. The history lesson has been fascinating and the background on SO MANY cases has really educated me. This will be the first time I've ever searched for a narrator's voice-Dan Woren does an incredible job, I have thoroughly enjoyed listening to his voice-and will say, there are other voices that would have ruined this book.

Well made

Excellent book, I listened to most of the constitutional law books on Audible and wasn’t expecting too learn much new from this one. However the focus of dissent specifically was very interesting and the book was in general had a very very high quality as far as writing style and research. I highly recommend this to anyone interested in the supreme court or Con law.

Great Topic but...

The topic is one that greatly interests me. There were many great cases discussed. The author interjected biased opinions which I wished were kept out of an historical presentation of the topic.

Incisive

A few years ago I started reading the biographies of Supreme Court Justices. I found their stories and that of the Court fascinating. Since then I have been reading about the Supreme Court and want to know more about the law. I found this book absolutely captivating; but I am sure the readers with law degrees will already know the material and if one is not interested they might be bored.

Melvin Urofsky traced the history of dissents from the founding era to the present. The author attempts to determine what value can be found in dissenting opinions. Urofsky states that dissents are an essential part of the “constitutional dialogue,” the device by which our nation has adapted to the changing times.

Urofsky reviews not only the Supreme Court but various State Supreme Courts and some foreign courts particularly France as it compares to the United States. The author also spends some time comparing the difference between the Supreme Court of Canada to that of the United States. Urofsky discusses in detail some of the famous dissents and some history of the Justices who wrote them. Some of the people he covers are John Marshall, Louis Brandeis, John Marshall Harlan, Hugo Black, Oliver Wendell Holmes, Stephen Breyer, Antonin Scalia, Ruth Bader Ginsberg, and Felix Frankfurter. Urofsky does provide a brief historical overview of the Court.

The book is elegantly written and meticulously researched. The author provided a balance between the people and the issues which helped maintain interest. I found the discussion about how various countries consider their laws most interesting. Urofsky is a law professor and historian; I have read a number of his books with great enjoyment.

Dan Woren does an excellent job narrating the book. Woren is an actor and voice over actor who is a well-known narrator of audiobooks.

Awesome Book & Read Well

I am a lawyer only a little over a year out of law school. I don't have much time these days to engage in thoughtful reading like before and so audible books are the way to go for me. This particular one I was unsure about before I purchased because I did not think I would simply hearing about dissents. I did not think they would be engaging nor did I believe it would provide any great historical insights. Never have I been more wrong. Both these worries were quickly forgotten as I stared listening and before long I couldn't wait to get in my car so I could listen to this book. A must have for anybody with the slightest interest in constitutional dialogue.

Disappointing

As an attorney, I look for objectivity in legal analysis and legal history books, especially those directed to a lay audience. This author fails miserably, especially in his analysis of more recent constitutional debates. If you want biased reinforcement of a political agenda, however, by all means- spend a credit on this one.
(And the review function isn’t working correctly- it won’t let me assign the “not for me” one star rating to this.)