Transcripts For CSPAN2 Book Discussion On Dissent And The Su

The moment of time and david did a fantastic job. Where is david . David did a fantastic job and all of my people to a great job they helped me so much. We are doing a couple of other things right now. Its not easy. [inaudible conversations] [inaudible conversations] good afternoon everyone. I would like to thank everyone here for coming out to politics and prose. As we embark on another wonderful reading. I would like to take care of some quick housekeeping first. Again please silence your cell phones at this time and we have cspan with us this afternoon so when you ask your questions please run up to our audience mic and form a look line. Lastly this is not the last event for today so while we usually would ask you to fold up your chairs david assets you leave your chairs where they are for next event. My name is Christopher Banks and i welcome you to politics and prose on behalf of the coowners of politics and prose and on behalf of our staff. We do over 500 events a year in addition to events in the space our us poison pellets locations in different venues across the city. We hold book groups classes and literary trips throughout the year. I would like to begin by saying that im i am pleased to welcome publicpolicy law professor of history at Virginia Commonwealth University Melvin Urofsky as he presents his book dissent and the Supreme Court its role in the courts history and the nations constitutional dialogue urofsky is written and edited 52 books and has devoted his career to studying legal history. His previous books include spider visa Supreme Court Justice Louis brandeis which was deemed fundamental by the knicks times book review. In addition to division and discourse in the supreme decisions. Kirkus reviews comments that dissent and the Supreme Court urofskys liked him a scholarship and combined for an outstanding read. His latest offering, urofsky reviews a 226 years of high Court Decisions. A major concept found in his work that well may be the opinion of the majority that is rain today over time it is often the wisdom of the dissenting view that prevails preview frames history is an ongoing debate over the meaning of the constitution shows how judicial in a sense reinvigorates democracy itself. Without further pause i present professor sub war. Thank you. [applause] its always a pleasure to be politics and prose. How shall i dissent, let me count the ways. How many of you saw the movie mary poppins . Either as children, parents or grandchildren . You remember that scene where uncle albert m. Bird and the children are having a tea party on the ceiling and she starts singing this song about different kinds of laughs and making fun of them and how bad they are trying to get them down. Well, i thought that would be a great way to start the soy called the people and asked them could they write a song for me about dissents. The answer was what is a dissents . So lacking a song and given my voice my family will tell you it is a blessing by itself but i do not sing, let me read to you. See if you can guess who wrote this first quote. I am unable to agree with the judgment of the majority of the court and although i think its useless and undesirable as a rule to express the sense i feel bound to do so in this case. Anybody want to guess who that is . Oliver wendell holmes. The next one is from a lawyer who says dissent is like, site falling into three categories, excusable, justifiable and reprehensible. Law school dean kathleen sullivan, great Supreme Court dissents lie like. Ammunition for future generations to unearth when the time has come. Pierce butler. I show in silence acquiesce the right development or statement of the law. They often do harm. For myself i say lead us not into temptation. And finally william o. Douglas. The right to dissent is the only thing that makes life powerful for a judge on an appellate court. So you can see there is quite a range of opinion and by the way i had two or 300 of these quotes that i gathered in the course of writing this book. And even today you find there are many people who disagree with the whole idea of dissenting. Last year there were dissent or separate opinions in two out of every three opinions that the u. S. Supreme court handed down. This year the percentage is likely to be higher given some really highprofile cases that are coming up but we are used to that. This has been the pattern ever since the early 1940s. Before that believe it or not there were very few dissents at all. Up until the 1940s, the Supreme Court police unanimous in 95 or better of all their cases they determine. We started out with an English Heritage of syria out of opinions. That is every judge would write an opinion on the case. The problem here was that while you could tell who one by counting up the boats he couldnt always tell what the reason was that the person had one. John marshall believed that it would be better for the court if it spoke in one voice and remember this is the beginning of the republican buddies trying to do is establish a court as a coequal branch of government. And by the force of his personality and his logic this is what happens. And this is still the belief of some jurists that the court should speak in one voice because it carries more weight that way. In europe some countries have until recently actually forbidden the publication of dissent. Now were their dissent there were dissents from the beginning but far and few between. In the 19th century the only important ones were the two dissents by the queen and the dred scott decision and they didnt have a great impact in some ways beyond a few years because they civil war settled in. Steven field in the slaughterhouse case had an enormous impact and got us to believe corporations were persons. Then there was John Marshall harlan the first in the civil rights cases, which continues to have an impact unto this day. Moreover he even if a justice did not agree with the majority opinion well into the 1920s p. , and they were all men at this time come might often justified the disagreement without a separate opinion. One reason was that up until the mid1920s the court heard almost every kind of case, cases that today would be decided in a Magistrate Court in the local township, and maybe a little state court. They were bankruptcy cases. There was, you remember the thing in the fiddler on the roof. He sold me a horse. It was a mule, that sort of thing . Those cases come before the Supreme Court. They were poor and importance only to the people that were litigating it and is Louis Brandeis said was more important to decide case than to decide it right, just get it out of here. Then in the 1920s we begin to get the sense, especially those of Oliver Wendell holmes Louis Brandeis and harlan fisk stone but in the terms of the courts total caseload these are really only a few. If you take a look at the total number of dissents that say brandeis and holmes wrote their lesson by actually about total number of opinions they wrote in their tenure on the high court. Things began to change with the judges bill of 1925, which William Howard taft lobbied for it. Which gave the court for the first time in its history almost complete control over its docket it became what taft wanted it to become, namely a constitutional court. And with few exceptions since then its annual vote consists of two types of cases. Challenges to laws either state or federal uncommon on constitutional grounds and once the Court Decides the only remedy is a constitutional amendment. This happened with the income tax cases in the 1890s. Then there are questions of statutory interpretation. What do congressman . One would think that with all the money that congress has, with the thousands of aids servicing the congress they would be able to write a law that was understandable to everybody. But they dont. And many times what the court has essentially said is, this is what we think you mean and if its not rewrite it paid you can do that so you dont need a constitutional amendment. Now in a constitutional court, justices began to develop jurisprudential philosophies and they try to be true to them. Im not saying that justices before them did not have consistent use nor that there werent any constitutional cases before them. But the majority of the cases they heard as i just told you didnt require consistency. Better decide a case and decide it right. Now with the majority of cases being constitutional questions, the cases had to be decided right and at that justices disagreed he felt it necessary to explain why. Now there are many reasons that it multiplied during the 1940s. One was named philip Felix Frankfurter. If any of you have ever tried to read a Supreme Court case and thought it was load it with that footnotes that felix is fall. He wrote them as they were like review articles. He thought of something that only the elite should understand. He wrote, more dissent the majority opinions in the fact is that no one pays any attention to date either to his majority opinions or to his dissents but he made a lot of noise and because he wrote his opponents on the court known as the prima donnas William Douglas and hugo black felt they had the right to answers or you begin to get cases not only with the majority opinion in may dissent, and another dissent. You actually had cases where there have been nine separate opinions. I havent found any that i cant. So far there have been ones with nine. Another recent that dissent started to multiply work works. Brandeis and the others had one clerk and it was a large investment of that clerks time to get it sent in. Now that justices have four clerks each. I think the chief has five. Its not hard. Okay you take this to centanni take that one and we will just keep grinding them out as much as we want. Now my theme in the book is that of constitutional dialogue. Now this is a dialogue that takes place between the court and other branches of government. First of all its a dialogue that takes place between the justices and members of the Supreme Court. Let me quote the fearsome roof bader ginsburg. My experience teaches that theres Nothing Better than an impressive dissent to lead the offer of the majority opinion to define and clarify her circulation. The Virginia Military Institute Case decided by the court in 1996 held the denial of admission to women violated the 14th amendment equal protection clause. I was assigned to write the courts opinion. The final draft released to the public was ever so much better, oh okay. Its hard to read that way but we will do the best we can. Anyway going back the final draft released to the public was ever so much better than my first second and at least a dozen more drafts thanks to Justice Scalias attention grabbing dissent. Now we go to justice scalia. Who is ginsburgs good friend below optins india and nemesis. Scully wrote though they fact never comes to public light the first draft of the dissent often causes them majority to refine his opinion eliminating the more vulnerable assertions and nearing the announced legal rule when i have been assigned the opinion to the court in a divided case nothing gives me so much assurance that i have written it well as the fact that im able to respond satisfactorily in my judgment to all the onslaughts of the dissents were separate and currents is. Ironic as it may seem i think a higher percentage of the worst opinions of the court not in russell but in reasoning are unanimous ones. So this is part of the dialogue. The judges talking to one another. And sometimes those changes minds. Here again let me go to justice ginsburg. Since her words are better than mine. I have to have very experienced she told the washington of holding dissent from a supple one of their justice. In time it became the opinion of the court in which only three of my colleagues dissented so there is a dialogue going on here. Sometimes after the book goes to conference it may appear that the majority is here and the minorities here and then when people start writing he began to see not just the strength of different arguments that their weaknesses as well. So this i think is one of the most important of the dialogs that are taking place and it happens every terms on almost every case. There is also the dialogue between the court and other branches of the government such as congress. For example in an opinion that most academics think is not only stilted but stupid the court held that women who suffer discrimination in pay had to report it within six months of when they discovered it. Now if you had a case of lily led better who didnt discover for 27 ideas because the men didnt go around saying i make more than you do so how was she to know that she was in getting paid . Justice ginsburg writes an opinion here, a dissents that says this is statutory interpretation and congress if this is not what you meant by the this stupid interpretation, rewrite it. That same day a senator named Hillary Clinton introduced the law. The president at that time george w. Bush, threatened to veto the bill if it got passed congress. You may remember when the first things obama did when he came in was to sent by the congress to read pass a law which they did and he had a big signing ceremony calling it the Lilly Ledbetter law. There is also, and of course there is dialogue between the president and the court. A good example here the cases that came out of wanton amao with the people who are interned there in a nonstate status and the court saying they are entitled to due process. George bush kept trying to evade it in the court said they are entitled to due process. Finally and this is the hardest one i think to track. There is a dialogue between the court. You may remember the federalist paper called the court the least Dangerous Branch because it has needed the power of the purse, the congress, nor the president. The only power that the court has is the goodwill that the people hold it in. And it screwed up a couple of times as dred scott in the 19th century. There was and continues to be a hullabaloo over roe v. Wade. But for the most part in the judges are getting much more adept at communicating with the public. Now finally there does what i was most concerned about was the conversation between the dissenter and future courts. Here we come to what some key people have called for fedex dissents. Prophetic dissents. Chief Justice Hughes said a dissent is an appeal to the brooding spirit of the law to the intelligence of a future day when a later decision may possibly correct the error to which the dissenting judge believes the court to have been betrayed. A few examples may suffice and then i would like to say a few words about the Current Court. And get to some questions on that one. What example is hugo black in the 1942 case . Smith smith betts was poor, charged with armed robbery, asked for a lawyer and was told a lawyer be appointed by the state was only available in capital cases. The Supreme Court upheld the state Court Decision and tear is what blocks it. The sixth amendment stands as a constant admonition that the constitutional safeguards that provides a loss justice will not still be done. It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skills to protect themselves when brought before a tribunal with power to take his life or liberty. We are in the prosecution is presented by experienced counsel. That which is simple orderly and necessary to the lawyer, the untrained layman me at pier intricate complex and mysterious. That was 1942. Over the next 20 years every time a sixth amendment case on representation by a lawyer came before the court, this is what like bank blows goats. It was there. They kept having to do it in gradually what happened was every single case was overturned on a technicality because in the succeeding case they said of course he would have to have a lawyer if it was a complex case, or if the person lacked the mental capacity to be able to understand what was going on. And the court kept finding lack of mental capacity, technical cases to keep overturning it at the shying away from overturning that. Brady until earl warren becomes chief justice. Let me tell you a story here which not only says how the dissenter is important but also have the court works. By the early 1960s the court was ready to overrule betts v. Brady but the court cant reach out so warren tells his clerk to start looking for cases involving the sixth amendment. Three cases,. The first one involved a man who had molested both his son and his daughter and there were plenty of witnesses. This guy was guilty, no question. The court was not about to overturn betts v. Grady so that went to the site for a while. The second one to come up and talked to guys who had committed an armed robbery, okay . And one of them as my son the former prosecutor used to say, did the right thing. Ieee ratted out his colleague. However the court had appointed a lawyer but now a lawyer had a heart problem because he had one client who was still pleading innocent and another client who said guilty. The court refused to appoint a second lawyer and so that case comes up in here again the court did not want to overturn a case in favor of somebody who was clearly guilty. Enter Clarence Earl gideon. As we know as henry fonda, who allegedly, allegedly i say had robbed a pool hall in florida. And was convicted on the basis of testimony of someone who many think was the guy who really did it and gets to prison where he spent a lot of his life and he writes a handwritten Supreme Court review. The court takes it in its known as. You didnt have to pay the fee and all that but comes up. And the Court Appoint