Q&A with Melvin I. Urofsky

Melvin I. Urofsky is the author of the new book Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue. His many other books include Louis D. Brandeis. He is a professor emeritus of history at Virginia Commonwealth University, and he lives in Gaithersburg, Maryland.

Q: Why did you decide to write about Supreme Court dissents, and what do you see as some of the most important ones?

A: The book in some ways grew out of the Brandeis biography. Brandeis wrote very important dissents in the 1920s. After that book was finished, the editor at Pantheon, Victoria Wilson, wanted another book.

My wife suggested I write about dissent…the question was how to do it. I did not want the book to be a law school textbook. I did not want the book to be a book only lawyers and scholars would read…

I try to give an overview of how dissent can play an important role, and it’s interspersed with entr’actes, a look at specific dissents—Brandeis in Olmstead, Hugo Black in Betts v. Brady. I show how important some dissents can be, and how [they can eventually become] the law of the land.

Q: In the book, you write, “All of the justices agree that dissents, if well reasoned, almost invariably make the majority opinion stronger.” What are some recent examples?

A: There’s a dialogue here. A really good example is told by Justice Ginsburg about writing the majority opinion in the VMI case. She says her majority opinion went through several drafts, and each was made stronger by the fact that she knew what Justice Scalia was going to say in dissent…

Q: How did the tradition of Supreme Court dissents emerge, and have there been more in recent years?

A: If we go all the way back, the Court sort of followed the English practice of seriatim, where each judge wrote an opinion. Sometimes it was hard to tell who won—it would be 3-2 but the [majority] had completely different views.

Then, this starts off in the 1790s, and takes off under John Marshall, who convinced his brethren there should be [one] opinion of the Court. Most of the time, they didn’t have dissenting opinions. Well into the 1920s, a dissent would be noted but there would be no opinion.

Then, several things happened. Up through the Taft Court and into the Hughes Court in the 1930s, majority opinions without any dissents or concurring opinions was normal. Nine of 10 cases were unanimous.

What changed was at the behest of Chief Justice Taft, Congress passed the Judges’ Bill [of 1925]. It gave the Supreme Court greater control over the docket. Up to then, [to take a case up to the Supreme Court] was easy to do.

[Looking at cases] for 1923, you will find divorce cases, bankruptcy cases, property cases—cases that now are decided in municipal court or, at most, state court. The court was handing down over 200 opinions a term. Most were short.

With the judges’ bill, Taft wanted the Supreme Court to become a constitutional court. Other than suits between states, he wanted only constitutional issues or statutory interpretation. Once you have constitutional issues involved, it’s important to decide it right…They would dissent if they lost…

The vast majority of dissents are rightfully forgotten. Some are minor…[but] prophetic dissents don’t go away. They set forth a new idea of what the constitution should mean. Holmes in the free speech case. Brandeis with privacy. Marshall and Brennan on the death penalty.

Q: Are there more dissents lately than, say, 50-60 years ago?

A: What we have is a strongly divided court. Brown v. Board was 9-0—that was in large measure due to Chief Justice Warren’s political skills.

[Chief Justice] Roberts, in his confirmation hearings, said he would like to go back to when more decisions were unanimous—there isn’t a single person on the Court now who’s ever held elected office...

There was an article last [April] in The Atlantic by Akhil Reed Amar [saying that] the Court has no political skills. Whereas you could get something like Justice Jackson’s concurrence in the steel seizure case in 1952, he knew how the executive worked, and how it related to Congress. He was writing out of personal experience. You don’t have anyone on the Court [like that today].

Q: What are some of the important recent dissents?

A: It’s hard to say—Mark Tushnet says only history tells us which are the great dissents. I sent out a query [saying] I was dealing with great dissents and which in the last 25 years might be included as prophetic dissents. Three led the pack.

[First,] Scalia’s dissent on the independent counsel law…I doubt [it’s a prophetic dissent] because Congress allowed the law to die and never replaced it.

Second, Ruth Bader Ginsburg’s dissent on the Affordable Care Act—the majority said the law was unconstitutional under the commerce clause, but Roberts saved it by saying it was constitutional as a tax case.

Ginsburg wrote a brilliant dissent that traced the history of the commerce clause to say the Affordable Care Act fit in as legitimate under the commerce clause. At some point, there is going to be a case involving the commerce clause, and conservatives are going to say it doesn’t meet the criteria—they will have to deal with Ginsburg’s points.

The third is the death penalty case—Brennan wrote a dissent. There’s a question whether the country will abandon the death penalty—Brennan’s dissent will provide constitutional justification.

Q: Speaking of Justice Scalia, what would you say is his legacy on the Court when it comes to dissents?

A: I don't really know. What many people consider his best dissent was in the Morrison case almost 30 years ago requiring a special prosecutor. He argued it was unconstitutional, but since Congress never renewed the law, I'm not sure of the impact. He was on the wrong side with gay rights...

Q: What is the impact of his dissenting on gay rights?

A: For social conservatives who oppose gay rights they will keep quoting it. I think he was on the wrong side of history...There will be cases coming up, but it's done now. It's hard to turn back and take rights away...

Q: What will happen this year in terms of replacing Scalia on the Court?

A: Obama will wait until after the funeral and then will make an appointment. The appointment will make problems for Republicans. Loretta Lynch is black, a woman, has already been vetted by the Senate. They are going to have a hard problem with somebody like that, especially in an election year. If they delay or turn her down, it risks alienating the women and the black vote. The Post listed five possibilities--I thought she was the most likely...

I think it's nonsense that Obama can't make an appointment in his last year. John Adams appointed John Marshall to the Supreme Court in the last month, after the election had already been given to Jefferson.

Q: Getting back to the book, your chapter on a different justice, John Marshall Harlan, is titled “The First Great Dissenter.” How did he take on this role, and what is his legacy?

A: There’s a biography of him by Linda Przybyszewski—Harlan is remembered for his dissents in the commerce clause cases. He’s remembered for his dissents in the civil rights cases, Plessy v. Ferguson…the constitution does not recognize castes of people. This is a good example of dissents that lie fallow for many years.

There was an article written around 1947. The two authors were blown away by what Harlan had written, and noted that in not a single constitutional textbook were any of Harlan’s dissents included.

Felix Frankfurter dismissed Harlan as a crank. Then came Brown v. Board and everybody was looking at it. Thurgood Marshall used to cite Harlan.

Dissents in some ways have been used in ways their authors never intended. Conservatives are using Harlan to strike down laws…I’m not sure he would have approved.

Q: Are you working on another book?

A: Always. A book on affirmative action.

--Interview with Deborah Kalb. For a previous Q&A with Melvin Urofsky, please click here.