I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases

I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases

I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases

I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases


For the first time, a collection of dissents from the most famous Supreme Court cases

If American history can truly be traced through the majority decisions in landmark Supreme Court cases, then what about the dissenting opinions? In issues of race, gender, privacy, workers' rights, and more, would advances have been impeded or failures rectified if the dissenting opinions were in fact the majority opinions?

In offering thirteen famous dissents-from Marbury v. Madison and Brown v. Board of Education to Griswold v. Connecticut and Lawrence v. Texas, each edited with the judges' eloquence preserved-renowned Supreme Court scholar Mark Tushnet reminds us that court decisions are not pronouncements issued by the utterly objective, they are in fact political statements from highly intelligent but partisan people. Tushnet introduces readers to the very concept of dissent in the courts and then provides useful context for each case, filling in gaps in the Court's history and providing an overview of the issues at stake. After each case, he considers the impact the dissenting opinion would have had, if it had been the majority decision.

Lively and accessible, I Dissent offers a radically fresh view of the judiciary in a collection that is essential reading for anyone interested in American history.


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 vindicated by history. The nation came to see the wisdom of their constitutional views, and the errors of the majorities that temporarily prevailed.

That is a comforting story—except for the fact that there are always dissenters, and we never know which is going to be vindicated and which repudiated by history. Once we realize, as we must, that some dissenters were wrong at the moment they dissented and wrong thereafter, the story about dissent, and about how history decides who is the winner and who the loser, becomes much more complicated.

I think it useful to begin by laying out some reasons for being skeptical about the very idea of a dissenting opinion. Imagine that you are justice on the Supreme Court. You have read the briefs and heard the arguments made in a case, and you have discussed the case with the other justices, who of course have examined exactly the same materials. You think that, properly read and interpreted, the Constitution requires that the plaintiff win her case. Five, six, even eight of your colleagues disagree. They read the legal materials to require that the plain-

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