Dissent and the Supreme Court: it’s role in the court’s history and the nation’s constitutional dialogue by Melvin I. Urofsky (2015)
Probably best to buy this book because it is over 400 pages and extremely detailed with almost every sentence containing information of significance to the discussions of cases that have been before the Court and will be again based on the numerous unconstitutional laws so many states have passed recently. I do not recall what I was reading or watching, but I was suddenly struck by a better understanding of racism in America. Though I am white, I have a heart and am empathetic and compassionate, but now that I am older I suppose, I more truly grasp how wretched and unreasonable and dreadful and pervasive explicit racism (then and, alas, now). Some people were fooled when it was briefly suppressed by being converted to more subtle or maybe secretive racism that we had for a little after the Civil Rights Movement. And obviously, this was not true. Voting rights are at risk for most people in light of recent Supreme Court decisions, Citizens’s United, but also the one (Shelby v. Holder recently where Clarence Thomas (and Scalia and the other Republican Justices) decided to gut the Act and said, sort of, racism doesn’t exist anymore and so federal review of states laws regarding voting rules was no longer necessary. We have now also seen that this was just another bad decision by these conservative men who want to suppress the vote. Witness the change of Arizona changes to their laws, which they were now allowed to do without Federal review by the Shelby ruling, to reduce the number of polling places from 300 to 60, resulting in 5 hour waiting in lines for many people, miles long queues, and the pretense that “provisional” ballots will even be counted.
I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases by Mark Tushnet (2008)
Our constitutional tradition celebrates the great dissenters — John Marshall Harlan, Oliver Wendell Holmes, William O. Douglas. On one level, the reason is clear: out of step with the prevailing constitutional views, of their times, they were [sometimes] vindicated by history. The nation came to see the wisdom of their constitutional views, and the errors of the majorities that temporarily prevailed.
I added the [sometimes] because Scalia’s dissent is in two of the cases and I’m pretty sure when I get to them, he will be wrong, again. (His opinions always were wrong in MY opinion based on general principle!) So I decided I couldn’t wait and went to the last case first because it was a Scalia dissent.
Oddly, other cases have two justices listed in the table of contents as dissenting. However in the Scalia cases, Clarence (gag) Thomas was also listed in the chapter as joining in the dissent in Lawrence v. Texas, but not in the Table of Contents maybe because he wrote a separate dissent. Of course, now that Scalia is dead (RIH) it is a common joke that Thomas will not know how to vote anymore. Plus the mockery that after the many decades on the bench, he had NEVER SPOKEN during a case presented to the Supreme Court until Scalia died (2016).
In the preface, the author describes how the Constitution, once revered as a uniting force, has now become divisive along ideological lines. “People see in our governing document only what they wish to see. It is not a unifying force, as its authors had intended, but a wedge that widens the partisan divide.” A little bit later he makes the point that history cannot “be understood by treating the past as if it were the present. Much has happened since the founders’ time: national expansion on a shrinking planet, nuclear and biological warfare, Internet and broadcast technologies, and so on — more than two centuries of subsequent history. He gives a rather amusing anecdote to illustrate the changes.
Compare then and now. On October 15, 1789, President Washington set out from New York with only two aides and six servants to tour New England. In his diary, he chronicled the first day of the journey:
‘The road for the greater part, indeed the whole way, was very rough and stoney [sic], but the land strong, well covered with grass and a luxuriant crop of Indian corn intermixed with popions [pumpkins] which were ungathered in the fields. We met four droves of beef cattle for the New York market (about 30 in a drove) some of which were very fine — also a flock of sheep for the same place. We scarcely passes a farm house that did not abd. in geese.’
Washington was traveling through what is now THE BRONX, traversed by interstate highways and expressways, not stony roads, and home to some 1.4 million people packed tightly within apartments. If the country Washington observed was very different back then, so too was the manner in which he observed it, close up and literally on the ground, experiencing every stone in the road. He could meet his constituency directly, without intervention from an advance team, a press corps , or a small army of secret service agents. (p. xi, emphasis mine as anyone who has ever been to the Bronx will agree)
I have been hostile to Sandra Day O’Connor ever since I read that it was her language that gave the states the ability to regulate abortion as long as it was not an “undue burden” to pregnant women. And today’s hundreds of abortion restrictions stem from this language. But I thought it was just me that hated her for being a republican first and a woman second. I thought she was always hailed for making choice the law of the land, but in fact it would seem that she was not progressive on the issue either.
I knew this was a book I wanted to read after seeing the author and Jon Stewart talk about it on The Daily Show. It exceeds my expectations in detail (lots of footnotes to love) and excellent flowing prose. Though I often kept reading because the text moved along like any good story, I found myself stopping to look up more information about people or events discussed on the Internet
Finally I just started putting bookmarks for passages to return to for rereading. A sentence on page 72 struck me in particular: “the states were, in the words of the Founding Fathers, “separately incompetent” to address the problem of children in the workplace.”