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

Author: Melvin I. Urofsky

Publisher: Vintage

ISBN: 030774132X

Category: Law

Page: 544

View: 7536

In his major work, acclaimed historian and judicial authority Melvin Urofsky examines the great dissents throughout the Court's long history. Constitutional dialogue is one of the ways in which we as a people reinvent and reinvigorate our democratic society. The Supreme Court has interpreted the meaning of the Constitution, acknowledged that the Court's majority opinions have not always been right, and initiated a critical discourse about what a particular decision should mean and fashioning subsequent decisions--largely through the power of dissent. Urofsky shows how the practice grew slowly but steadily, beginning with the infamous & now overturned case of Dred Scott v. Sanford (1857) during which Chief Justice Roger Taney's opinion upheld slaver and ending with the present age of incivility, in which reasoned dialogue seems less and less possible. Dissent on the court and off, Urofsky argues in this major work, has been a crucial ingredient in keeping the Constitution alive and must continue to be so.
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Its Role in the Court's History and the Nation's Constitutional Dialogue

Author: Melvin I. Urofsky

Publisher: Vintage

ISBN: 110187063X

Category: Law

Page: 544

View: 8473

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. (With black-and-white illustrations throughout.) From the Hardcover edition.
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Its Role in the Court's History and the Nation's Constitutional Dialogue

Author: Melvin I. Urofsky

Publisher: Pantheon

ISBN: 030737940X

Category: Law

Page: 528

View: 7571

From revered judicial authority—author of Louis D. Brandeis, Division and Discord, andSupreme Decisions—a major book that looks at the role of dissent in the Supreme Court and the meaning of the Constitution through the greatest and longest lasting (226 years) 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. Melvin 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. InDissent and the Supreme Court, he explores the great dissents throughout the Court's 226-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, Urofsky writes, 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 Harlan inPlessy v. Ferguson (1896)—that segregation on the basis of race violated the Constitution—in its decision inBrown v. Board of Education (1954). (With black-and-white illustrations throughout.)
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Great Opposing Opinions in Landmark Supreme Court Cases

Author: Mark V. Tushnet

Publisher: Beacon Press

ISBN: 9780807000366

Category: Law

Page: 229

View: 4214

A distinguished Supreme Court scholar introduces and explains sixteen influential cases from throughout the Court's history and offers a sense of what could have developed if the dissents were instead the majority opinions, looking at each case in terms of its political, social, economic, and cultural context. Original.
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A Legacy of Landmark Opinions and Dissents

Author: Antonin Scalia

Publisher: Simon and Schuster

ISBN: 1621575330

Category: Political Science

Page: 592

View: 9887

The sudden passing of Justice Antonin Scalia shook America. After almost thirty years on the Supreme Court, Scalia had become as integral to the institution as the hallowed room in which he sat. His wisecracking interruptions during oral arguments, his unmatched legal wisdom, his unwavering dedication to the Constitution, and his blistering dissents defined his leadership role on the court and inspired new generations of policymakers and legal minds. Now, as Republicans and Democrats wage war over Scalia’s lamentably empty Supreme Court seat, Kevin Ring, former counsel to the U.S. Senate’s Constitution Subcommittee, has taken a close look at the cases that best illustrate Scalia’s character, philosophy, and legacy. In Scalia’s Court: A Legacy of Landmark Opinions and Dissents, Ring collects Scalia’s most memorable opinions on free speech, separation of powers, race, religious freedom, the rights of the accused, abortion, and more; and intersperses Scalia's own words with an analysis of his legal reasoning and his lasting impact on American jurisprudence. “I don’t worry about my legacy,” Scalia once told an audience at the National Archives. “Just do your job right, and who cares?” Now that "the lion of American law has left the stage,” as the U.S. Attorney General put it, it is for the rest of America to worry about his legacy—and to care.
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The Struggle to Shape the Federal Judiciary

Author: Sarah A. Binder,Forrest Maltzman

Publisher: Brookings Institution Press

ISBN: 9780815703914

Category: Political Science

Page: 198

View: 7022

For better or worse, federal judges in the United States today are asked to resolve some of the nation's most important and contentious public policy issues. Although some hold onto the notion that federal judges are simply neutral arbiters of complex legal questions, the justices who serve on the Supreme Court and the judges who sit on the lower federal bench are in fact crafters of public law. In recent years, for example, the Supreme Court has bolstered the rights of immigrants, endorsed the constitutionality of school vouchers, struck down Washington D.C.'s blanket ban on handgun ownership, and most famously, determined the outcome of the 2000 presidential election. The judiciary now is an active partner in the making of public policy. Judicial selection has been contentious at numerous junctures in American history, but seldom has it seemed more acrimonious and dysfunctional than in recent years. Fewer than half of recent appellate court nominees have been confirmed, and at times over the past few years, over ten percent of the federal bench has sat vacant. Many nominations linger in the Senate for months, even years. All the while, the judiciary's caseload grows. Advice and Dissent explores the state of the nation's federal judicial selection system—a process beset by deepening partisan polarization, obstructionism, and deterioration of the practice of advice and consent. Focusing on the selection of judges for the U.S. Courts of Appeals and the U.S. District Courts, the true workhorses of the federal bench, Sarah A. Binder and Forrest Maltzman reconstruct the history and contemporary practice of advice and consent. They identify the political and institutional causes of conflict over judicial selection over the past sixty years, as well as the consequences of such battles over court appointments. Advice and Dissent offers proposals for reforming the institutions of judicial selection, advocating pragmatic reforms that seek to harness the incentives of presidents and senators together. How well lawmakers confront the breakdown in advice and consent will have lasting consequences for the institutional capacity of the U.S. Senate and for the performance of the federal bench.
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How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America

Author: Thomas Healy

Publisher: Macmillan

ISBN: 0805094563

Category: Biography & Autobiography

Page: 322

View: 2145

Based on newly discovered letters and memos, this riveting scholarly history of the conservative justice who became a free-speech advocate and established the modern understanding of the First Amendment reconstructs his journey from free-speech skeptic to First Amendment hero. (This book was previously featured in Forecast.)
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Talking Back to the Rehnquist Court, Eight Cases That Subverted Civil Liberties and Civil Rights

Author: Michael Avery

Publisher: NYU Press

ISBN: 9780814707371

Category: Law

Page: 245

View: 7691

The lawyers and legal commentators who contribute to We Dissent unanimously agree that during Chief Justice William Rehnquist’s nineteen-year tenure, the Supreme Court failed to adequately protect civil liberties and civil rights. This is evident in majority opinions written for numerous cases heard by the Rehnquist Court, and eight of those cases are re-examined here, with contributors offering dissents to the Court’s decisions. The Supreme Court opinions criticized in We Dissent suggest that the Rehnquist Court placed the interests of government above the people, and as the dissents in this book demonstrate, the Court strayed far from our constitutional ideals when it abandoned its commitment to the protection of the individual rights of Americans. Each chapter focuses on a different case—ranging from torture to search and seizure, and from racial profiling to the freedom of political expression—with contributors summarizing the case and the decision, and then offering their own dissent to the majority opinion. For some cases featured in the book, the Court’s majority decisions were unanimous, so readers can see here for the first time what a dissent might have looked like. In other cases, contributors offer alternative dissents to the minority opinion, thereby widening the scope of opposition to key civil liberties decision made by the Rehnquist Court. Taken together, the dissents in this unique book address the pressing issue of Constitutional protection of individual freedom, and present a vision of constitutional law in the United States that differs considerably from the recent jurisprudence of the United States Supreme Court. Contributors: Michael Avery, Erwin Chemerinsky,Marjorie Cohn, Tracey Maclin, Eva Paterson, Jamin Raskin, David Rudovsky, Susan Kiyomi Serrano, and Abbe Smith.
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Author: Steven H. Shiffrin

Publisher: Princeton University Press

ISBN: 9781400822966

Category: Law

Page: 220

View: 3055

Americans should not just tolerate dissent. They should encourage it. In this provocative and wide-ranging book, Steven Shiffrin makes this case by arguing that dissent should be promoted because it lies at the heart of a core American value: free speech. He contends, however, that the country's major institutions--including the Supreme Court and the mass media--wrongly limit dissent. And he reflects on how society and the law should change to encourage nonconformity. Shiffrin is one of the country's leading first-amendment theorists. He advances his dissent-based theory of free speech with careful reference to its implications for such controversial topics of constitutional debate as flag burning, cigarette advertising, racist speech, and subsidizing the arts. He shows that a dissent-based approach would offer strong protection for free speech--he defends flag burning as a legitimate form of protest, for example--but argues that it would still allow for certain limitations on activities such as hate speech and commercial speech. Shiffrin adds that a dissent-based approach reveals weaknesses in the approaches to free speech taken by postmodernism, Republicanism, deliberative democratic theory, outsider jurisprudence, and liberal theory. Throughout the book, Shiffrin emphasizes the social functions of dissent: its role in combating injustice and its place in cultural struggles over the meanings of America. He argues, for example, that if we took a dissent-based approach to free speech seriously, we would no longer accept the unjust fact that public debate is dominated by the voices of the powerful and the wealthy. To ensure that more voices are heard, he argues, the country should take such steps as making defamation laws more hospitable to criticism of powerful people, loosening the grip of commercial interests on the media, and ensuring that young people are taught the importance of challenging injustice. Powerfully and clearly argued, Shiffrin's book is a major contribution to debate about one of the most important subjects in American public life.
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American Law and the New Global Realities

Author: Stephen Breyer

Publisher: Vintage

ISBN: 1101912073

Category: Law

Page: 400

View: 8870

"In this original, far-reaching, and timely book, Justice Stephen Breyer examines the work of the Supreme Court of the United States in an increasingly interconnected world, a world in which all sorts of activity, both public and private--from the conduct of national security policy to the conduct of international trade--obliges the Court to understand and consider circumstances beyond America's borders. It is a world of instant communications, lightning-fast commerce, and shared problems (like public health threats and environmental degradation), and it is one in which the lives of Americans are routinely linked ever more pervasively to those of people in foreign lands. Indeed, at a moment when anyone may engage in direct transactions internationally for services previously bought and sold only locally (lodging, for instance, through online sites), it has become clear that, even in ordinary matters, judicial awareness can no longer stop at the water's edge. To trace how foreign considerations have come to inform the thinking of the Court, Justice Breyer begins with that area of the law in which they have always figured prominently: national security in its constitutional dimension--how should the Court balance this imperative with others, chiefly the protection of basic liberties, in its review of presidential and congressional actions? He goes on to show that as the world has grown steadily "smaller," the Court's horizons have inevitably expanded: it has been obliged to consider a great many more matters that now cross borders. What is the geographical reach of an American statute concerning, say, securities fraud, antitrust violations, or copyright protections? And in deciding such matters, can the Court interpret American laws so that they might work more efficiently with similar laws in other nations? While Americans must necessarily determine their own laws through democratic process, increasingly, the smooth operation of American law--and, by extension, the advancement of American interests and values--depends on its working in harmony with that of other jurisdictions. Justice Breyer describes how the aim of cultivating such harmony, as well as the expansion of the rule of law overall, with its attendant benefits, has drawn American jurists into the relatively new role of "constitutional diplomats," a little remarked but increasingly important job for them in this fast-changing world."--Publisher's description.
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A Comparative and Legal Perspective

Author: Katalin Kelemen

Publisher: Routledge

ISBN: 1317110048

Category: Law

Page: 208

View: 8270

Dissent in courts has always existed. It is natural and healthy that judges disagree on legal issues of a certain importance and difficulty. The question is if it is reasonable to conceal dissent. Not every legal system allows judges to explain their disagreement to the public in a separate opinion attached to the judgment of the court. Most constitutional courts do. This book presents a comparative analysis of the practice of judicial dissent in constitutional courts from the perspective of the civil law tradition. It discusses the theoretical background, presents the history of the institution and today’s practice, thus laying down the basis for an accurate consideration of the phenomenon from a legal perspective.
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Ruth Bader Ginsburg Makes Her Mark (With Audio Recording)

Author: Debbie Levy

Publisher: Simon and Schuster

ISBN: 1481465600

Category: Juvenile Nonfiction

Page: 40

View: 3210

Get to know celebrated Supreme Court justice Ruth Bader Ginsburg—in the first picture book about her life—as she proves that disagreeing does not make you disagreeable! Supreme Court justice Ruth Bader Ginsburg has spent a lifetime disagreeing: disagreeing with inequality, arguing against unfair treatment, and standing up for what’s right for people everywhere. This biographical picture book about the Notorious RBG, tells the justice’s story through the lens of her many famous dissents, or disagreements.
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Author: Frederic Reynold

Publisher: N.A

ISBN: 9780854901272

Category: Judicial process

Page: 214

View: 7993

Frederic Reynold provides an engaging analysis of disagreement and dissent in judicial decision-making. He explores the root causes of disagreement in cases decided over the last 25 years or so in the House of Lords and the Supreme Court, and the light they throw on the character of judicial decision-making at this level. Disagreement and Dissent in Judicial Decision-making seeks to provide answers to a number of topical questions:• To what extent, if any, have judges observed the distinction between legal policy (a legitimate matter of concern to them) and public policy (which generally speaking is not)?• Can a non-lawyer be in a position to assess the merits of the competing views of the majority and the minority?• Can one talk in any meaningful sense of achieving “a balance” in the membership of the Supreme Court?• Is the UK Supreme Court, in terms of character and function, heading in the direction of the US Supreme Court?Split decisions of the law lords and (since October 2009) justices of the Supreme Court have always exercised a particular fascination, and especially those decisions featuring a bare majority. The analysis given here will throw light on a number of topical concerns, eg: the balance in the composition of, and the appointment of justices to, the Supreme Court; and the boundaries between judicial and political decision-making.
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A Life

Author: Melvin Urofsky

Publisher: Schocken Books Incorporated

ISBN: 0805211950

Category: Biography & Autobiography

Page: 955

View: 1059

A full-scale portrait of the early twentieth-century Supreme Court justice seeks to distinguish his personal life from his achievements as a reformer and jurist, offering additional insight into his role in the development of pro bono legal services, the creations of the Federal Reserve Act and other key legislations, and his contributions to American-Jewish affairs as a practicing Zionist.
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Author: Stephen Breyer

Publisher: Brookings Institution Press

ISBN: 0815728905

Category: Political Science

Page: 176

View: 635

A landmark dissenting opinion arguing against the death penalty Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen G. Breyer argues that it does: that it is carried out unfairly and inconsistently, and thus violates the ban on "cruel and unusual punishments" specified by the Eighth Amendment to the Constitution. "Today’s administration of the death penalty," Breyer writes, "involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." This volume contains Breyer's dissent in the case of Glossip v. Gross, which involved an unsuccessful challenge to Oklahoma's use of a lethal-injection drug because it might cause severe pain. Justice Breyer's legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty. Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts — including fellow Justice Antonin Scalia — as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer's mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions.
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The Voting Rights Act and the Transformation of American Democracy

Author: Gary May

Publisher: Basic Books

ISBN: 0465050735

Category: History

Page: 336

View: 4184

When the Fifteenth Amendment of 1870 granted African Americans the right to vote, it seemed as if a new era of political equality was at hand. Before long, however, white segregationists across the South counterattacked, driving their black countrymen from the polls through a combination of sheer terror and insidious devices such as complex literacy tests and expensive poll taxes. Most African Americans would remain voiceless for nearly a century more, citizens in name only until the passage of the 1965 Voting Rights Act secured their access to the ballot. In Bending Toward Justice, celebrated historian Gary May describes how black voters overcame centuries of bigotry to secure and preserve one of their most important rights as American citizens. The struggle that culminated in the passage of the Voting Rights Act was long and torturous, and only succeeded because of the courageous work of local freedom fighters and national civil rights leaders—as well as, ironically, the opposition of Southern segregationists and law enforcement officials, who won public sympathy for the voting rights movement by brutally attacking peaceful demonstrators. But while the Voting Rights Act represented an unqualified victory over such forces of hate, May explains that its achievements remain in jeopardy. Many argue that the 2008 election of President Barack Obama rendered the act obsolete, yet recent years have seen renewed efforts to curb voting rights and deny minorities the act’s hard-won protections. Legal challenges to key sections of the act may soon lead the Supreme Court to declare those protections unconstitutional. A vivid, fast-paced history of this landmark piece of civil rights legislation, Bending Toward Justice offers a dramatic, timely account of the struggle that finally won African Americans the ballot—although, as May shows, the fight for voting rights is by no means over.
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the rise, fall, and future of the modern Supreme Court

Author: Edward Lazarus

Publisher: Penguin Group USA

ISBN: N.A

Category: History

Page: 598

View: 7590

A former Supreme Court clerk reveals the judicial institution's inner workings and decision making processes, offering a detailed portrait of justice corrupted by politics and unduly influenced by the power of personality.
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Author: Kermit L. Hall,James W. Ely,Joel B. Grossman

Publisher: Oxford University Press on Demand

ISBN: 0195176618

Category: Law

Page: 1239

View: 3421

The second edition of this authoritative guide on the impact of the Supreme Court's decisions on American society includes updated entries on key cases over the past thirteen years, as well as a fully revised treatment of areas of constitutional law.
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Author: Cass R. Sunstein

Publisher: Harvard University Press

ISBN: 9780674017689

Category: Political Science

Page: 246

View: 2948

In this timely book, Cass R. Sunstein shows that organizations and nations are far more likely to prosper if they welcome dissent and promote openness. Attacking "political correctness" in all forms, Sunstein demonstrates that corporations, legislatures, even presidents are likely to blunder if they do not cultivate a culture of candor and disclosure. He shows that unjustified extremism, including violence and terrorism, often results from failure to tolerate dissenting views. The tragedy is that blunders and cruelties could be avoided if people spoke out. Sunstein casts new light on freedom of speech, showing that a free society not only forbids censorship but also provides public spaces for dissenters to expose widely held myths and pervasive injustices. He provides evidence about the effects of conformity and dissent on the federal courts. The evidence shows not only that Republican appointees vote differently from Democratic appointees but also that both Republican and Democratic judges are likely to go to extremes if unchecked by opposing views. Understanding the need for dissent illuminates countless social debates, including those over affirmative action in higher education, because diversity is indispensable to learning. Dissenters are often portrayed as selfish and disloyal, but Sunstein shows that those who reject pressures imposed by others perform valuable social functions, often at their own expense. This is true for dissenters in boardrooms, churches, unions, and academia. It is true for dissenters in the White House, Congress, and the Supreme Court. And it is true during times of war and peace.
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Atlanta and the Long History of the Civil Rights Movement

Author: Tomiko Brown-Nagin

Publisher: Oxford University Press

ISBN: 9780199831593

Category: Law

Page: 608

View: 2195

In this Bancroft Prize-winning history of the Civil Rights movement in Atlanta from the end of World War II to 1980, Tomiko Brown-Nagin shows that long before "black power" emerged and gave black dissent from the mainstream civil rights agenda a name, African Americans in Atlanta questioned the meaning of equality and the steps necessary to obtain a share of the American dream. This groundbreaking book uncovers the activism of visionaries--both well-known figures and unsung citizens--from across the ideological spectrum who sought something different from, or more complicated than, "integration." Local activists often played leading roles in carrying out the agenda of the NAACP, but some also pursued goals that differed markedly from those of the venerable civil rights organization. Brown-Nagin documents debates over politics, housing, public accommodations, and schools. Exploring the complex interplay between the local and national, between lawyers and communities, between elites and grassroots, and between middle-class and working-class African Americans, Courage to Dissent transforms our understanding of the Civil Rights era.
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