Melvin I. Urofsky

Urofsky is a well-known and highly regarded historian of the US Supreme Court who has authored books on justice Louis Brandeis as well as on specific historical periods in the court's development and clusters of issues it has faced (affirmative action, for example). Focusing only on the role of dissenting opinions allows him to frame some of the historical trends governing the evolution of the Supreme Court's rulings in useful and unexpected ways.

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.… (meer)