International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2016/Winter 2017 Issue
 

In Review:
Books About International Law and About Courts and Judges

 

Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue

By: Melvin I. Urofsky
Pantheon Books. 2015

Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor

Melvin I. Urofsky, professor emeritus  of history at Virginia Commonwealth University in the U.S. and past chair of that institution’s history department, has focused his writing and teaching career on law-related subjects, often controversial. Four of  his more recent publications deal with money and free speech, a controversy largely derived from the U.S. Supreme Court decision in the Citizens United case; assisted suicide; affirmative action, and death and dying. He is also the author of a definitive and well received biography of Louis D. Brandeis, one of the great justices of the U.S. Supreme Court. His latest effort examines an issue that is not greatly controversial, but is nevertheless an irritant that arises from time to time in many legal systems. That issue is the role of dissenting opinions in courts, especially appellate courts.

Many courts around the world, one might even say most courts, are what is known as collegial courts, that is, in their resolution of cases, dissenting opinions are not allowed, and a court must speak with one voice. The issue has not been one without controversy in the United States, and the U.S. Supreme Court in its 230 years of existence, has conducted its affairs as both a collegial court, and one that allows dissenting opinions and later, even what are called concurring opinions.

Professor Urofsky, in his well written book, has now presented a comprehensive account of the role of dissenting opinions in American jurisprudence, confining his commentary to the U.S. Supreme Court (U.S. lower appellate courts generally follow the lead of the “Supremes.” His account is historical; he starts with the practices of  the Supreme Court in its early years, and then gives an account of the changes made in the Court’s procedures through the years, to the actions of

 

the Roberts Court (John Roberts, C.J.). He concludes with an examination of the dissents of three justices that have his and other scholars’ admiration: the late William J. Brennan, the late Antonin Scalia, and current sitting Justice Ruth Bader Ginsburg.

The uneven start of the United States Supreme Court in the late 18th Century was characterized by justices issuing their opinions seriatim, that is, with each justice rendering his or her opinion in the case under consideration. This was satisfactory way of doing the business of the Court for some in those early days. However the seriatim procedure had one glaring fault: with each justice expressing his own views of the facts and the law, it was often difficult to determine who prevailed in the case, or what were the acceptable reasons for the judgment that was reached. The method of the Court is issuing opinions dramatically changed during the tenure of the third chief justice, Oliver Ellsworth in the waning years of the 17th Century. when the Court adopted the practice of the Court issuing “an opinion.” With the arrival of the fourth Chief Justice, John Marshall (the “Great Chief Justice”) in 1801 the practice of seriatim opinions ceased, as Chief Justice Marshall delegated to himself the task of writing all of the opinions of the Court.

Professor Urofsky traces the role of dissent in the subsequent years of the Supreme Court. Of particular interest to judges and jurists are the commentary he provides for memorable dissents in different eras, and how they have had considerable influence in the development of American law. The professor also includes significant commentary of the value of dissenting opinions and also of concurring opinions. Because of the book’s in-depth coverage of “dissent through the ages” and demonstration of the frequency and effects of dissent in modern times (e.g. “one of every five Supreme Court decisions include one or more dissenting opinions”) it deserves a place on every judge’s bookshelf, especially those of appellate judges.

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with assistance from the American Society of International Law.

Editor: James G. Apple.
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