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Bezig met laden... Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialoguedoor Melvin I. Urofsky
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Law.
Nonfiction.
HTML: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... Geen bibliotheekbeschrijvingen gevonden. |
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 Google Books — Bezig met laden...GenresDewey Decimale Classificatie (DDC)342.7302Social sciences Law Constitutional and administrative law North America Constitutional law--United States Basic instruments of Government, the US constitutionLC-classificatieWaarderingGemiddelde: (4.17)
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The existence of dissenting opinions is, in the first place, one of the things that makes the US Supreme Court relatively distinctive. The highest courts of many other nations often explicitly bar dissenting opinions or actively discourage them, in the belief that being seen to speak from the bench with one voice promotes greater certainty in the interpretation and application of the law by lower courts. Indeed, the unified voice was the norm when the US high court began. One goal of Urofsky's history, therefore, is to show how the use of dissent has waxed and waned over the years.
The more useful aspect of his history, however, is his examination of the different roles that dissent has played. At times the number of dissenting opinions serves as an index of the difficulty of the issues before a court at a given time; in other periods, however, proliferating dissent can indicate a weak or disorganized Chief Justice and/or a court of incompatible personalities. Urokfsky is also attentive to the ways in which dissents have been directed strategically at a variety of audiences. Some dissenting opinions, for example, never see the light of day but are circulated internally only in order to shape the final majority opinion (in general justices still favor unanimity and will strive to craft an opinion that can be affirmed by as many of their number as possible). Some dissents are designed to be delivered publicly from the bench in an angry denunciation of one's fellow justices. Still other dissents have been designed to appeal directly to public opinion.
One aspect that I found particularly fascinating--because it runs so counter to our current cultural demand that every single social and political problem should be fixed NOW!--is how many justices over the years have seen themselves engaged in playing the long game. Repeated dissents may, over time, gradually shift the thinking of the other justices. Justice Brandeis took things a step further by targeting many of his dissents at the nascent law review journals, with the goal of having them written about and debated in ways that would shape a future generation of justices.
The number of dissents produced over the years is vast and Urofsky tends to focus only on those that he finds had the most influence on legal discourse. This still makes for fascinating reading, as he patiently unfolds the degree to which dissents have gradually shaped (or even overturned outright) emerging legal thinking concerning the incorporation doctrine (the process by which provisions of the Bill of Rights were gradually extended to cover the laws of individual states), civil rights, free speech and, most recently, the right to privacy.
Due to the nature of his approach, however, the book becomes necessarily more speculative and less satisfying as it approaches the present. Dissents take time--often a long time--to make their presence felt, and in many cases it is still too soon to see how some of the dissents he finds most interesting will play out. It is not beyond the bounds of possibility--and is, in fact devoutly to be wished--that at some later date the Court will look back to the dissents in the infamous Citizens United case and affirm, unequivocally, that a corporation is not a person. (