We have cspan with us this afternoon, when you ask your questions please line up at our audience mike and form a line. Lastly, this is not the last event for the today. While we would usually ask you to fold up your chairs, today we ask that you leave your chairs for the next event. I welcome you to politics and prose, on behalf of our wonderful staff. We do over 500 events events per year, in addition to events in the space and other locations and venues across the city. We we also hold book groups, classes, and literary trips. I would like to begin by saying i am pleased to welcome Public Policy and law professor of history at virginia university, as he presents his new book dissent and the Supreme Court, its role in Court History and the nations constitutional dialogue. He has written and edited 52 books, his previous books include biography Supreme Court justice which is deemed monumental at the New York Times review, in in addition to the vision and discord, and supreme decisions. He reviews comments in the Supreme Court his lifetime of scholarship and ellicott pen combine for an outstanding read. And his latest offering he reviews 226 years of high Court Decisions. A major concept out in his work is that he may be the opinion today over time it is often the wisdom of the dissenting view that prevails. He frames history is an ongoing debate on the meaning of the constitution and shows how the dissent reinvigorates democracy itself. Thank you [applause]. Thank you, its always a pleasure to be a politics and prose. How shall i dissent, let me come the ways. How many of you saw the movie mary poppins . Either children, parents, gradual, okay. Do you remember that scene where uncle albert and birds and the children are having a tea party on the ceiling and she starts singing a 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 so i called the disney people and i asked them if they could write a song for me about dissents. The answer was, what is a dissent . So lacking a song and giving my voice, my family will tell you that is a blessing by itself that 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, although i think it useless and undesirable as a rule to express dissent i feel bound to do so in this case. Anyone want to get to that is . Oliver wendell holmes. The next one is from a lawyer who says dissent like homicide fall into three categories, excusable, justifiable, and reprehensible. Law school dean kathleen sullivan. Great Supreme Court dissents lie like buried ammunition for future generations to on earth when the time has come. Pierce butler. I shall in silence acquiesce, the scent seldom aided the right development or statement of the law, they often do harm for myself i say, lead us not into temptation. And finally, willy mo mo douglas, the right to dissent is the only thing that makes life tolerable for a judge on court. So so you can see theres a range of opinions mike by the way i have two or 300 of these quotes that i gathered in the course of writing this book. Even today you find there not many people who disagree with the whole idea of dissenting. Last year there were dissents or separate opinions and two out of every three opinions that the u. S. Supreme court handed down. This year, the dissent is likely to be higher given some really high profile, high tension cases. We are use to that. This has been the pattern ever since the early 1940s. Before that, believe it or not, they were very few dissents at all. Up until the 1940s the Supreme Court was unanimous in 95 or better of all of their cases. We started out with an English Heritage of opinions, that was every judge would write an opinion on the case. The problem here was that while you could tell who one by counting up the votes, you cannot always tell what the reason was that the person had one. John marshall believed that it would be better for the court if it spoken one voice, now remember this is the beginning of the republican what he is trying to do is establish the court as a coequal branch of government. By the force of his personality and his logic, this is what happens. This is still the belief of some jurors that a court should speak in one voice because it carries more weight that way. In europe, some countries have up until recently for bed and the publication of dissents. There were dissents from the beginning, but few and far between. In the 19th century the only important ones where the two dissents by the clean and curtis and scott decision and they did not have a great impact in some ways beyond a few years because the civil war settled the issue. Stephen field in the slaughterhouse case had an enormous impact and got us corporations as if they were persons. Then there was John Marshall the first in the civil rights cases. Which continues to have an impact to this day. Moreover, even if the justice did not agree with the majority of the opinion, well into the 1920s he, and they were all men at this time, might often just note the disagreement without a separate opinion. One reason was up until the mid19 20s the court heard almost every kind of case. Cases that today would be decided in a magistrates case in a local township. Maybe a low state court. There. There were bankruptcy cases, the types, remember the thing in fiddler on the roof, he saw me a horse, it was a a mule, those cases actually came before the Supreme Court. They were of importance only to the people who are litigating it. As who says its more important to decide a case then to decide right, just get it out of here. Then in the 1920s we begin to get the sense, especially those of Oliver Wendell holmes, we grand eyes, but in 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, they are less than 10 , less than 5 of the total number of opinions the men wrote in their tenure at the high court. Things began to change with the judges bill of 1925. William howard taft had lobbied for. He gave the court for the first time in its history, almost complete control over its it became what they wanted it to become, namely a constitutional court, with few exceptions since then, its annual load consent of two types of cases. Challenges to laws, either state or federal on constitutional grounds, once the Court Decides the only remedy is a constitutional amendment. This happened with the income tax cases in the 1890s. Then theres questions of statutory interpretation. What do congressman . Congressman . One would think that with all of the money that congress has, the thousands of aids servicing the congress they would be able to write a law that is understandable to everybody. But they do not. Many times what the court has essentially said is, this is what we think you mean and if it is not, rewrite it. You can do that. That. Here you do not need a constitutional amendment. Now in a constitutional coward justices began to develop philosophies and they try to be true to them. Im not saying justices before them did not have consist of use nor that there were not any constitutional cases before then. But the majority of the cases that they heard did not require consistency. Better decide a case then decide it right. Now with the majority of the cases being constitutional questions the cases had to be decided right and if the justice disagreed, he felt it necessary to did explain why. While there are many reasons that dissents multiplied during the 1940s, one was named felix frankfurt. If any of you had ever tried to read a Supreme Court case and thought it was dense, loaded with footnotes and everything that is felixs fault. Hero Supreme Court opinions as if they were law review articles, incomprehensible to most everyone, he thought that was the way it should be, only the elite should understand. He wrote more dissents than he wrote majority opinions and the fact is that non pays any attention today either to his majority opinions or to his dissents. But he he made a lot of noise. Because he wrote, his appointments known on the court as prima donnas, douglas and black that they had the right to answer. So you began to get cases with the majority of opinion, a concurrence a dissent, another dissent, you actually had cases where there were nine separate opinions. I have not found any that have had 10. But but so far there have been once with nine. Another recent the dissents started to multiply were clerks. Grand brandeis and the others had one clerk and it was a large investment of that clerks time to get a dissent written. Now the justices have four clerks each, i think the chief has five. It is not hard. Okay you cant take this dissent, you take that one and we will keep grinding them out as much as we want. Now, my theme in the book is that of constitutional dialogue. This is a dialogue that takes place between the court and other branches of government. First of all, it is a dialogue that takes place between the justices and the members of the Supreme Court. Let me quote the fear some Ruth Bader Ginsburg, my experience teaches that there is Nothing Better than an impressive dissent to lead the author of the majority opinion to refine and clarify her initial circulation. An illustration, the Virginia MilitaryInstitute Case decided by the court 1996 held the denials of admission to women violated the 14th amendment equal protection clause. I was assigned to write the courts opinion. The final draft release to the public was ever so much better okay and makes it hard to read that way but will do the best we can. I have to stand like this. The final draft release to the public was ever so much better than my first second and at least a dozen more drafts thanks to Justice Scalias dissent. Now we go to justice scalia. Who is ginsburgs good friend and occasional nemesis. Scalia wrote in a similar vein, so the fact never comes to public light , the first draft of a dissent often causes the majority to refine its opinion, eliminated the more vulnerable assertions and narrowing the announced legal rule. When i have been assigned the opinion for the court, and a divided case, nothing gives me so much assurance that i have written written it well is the fact that i am able to respond satisfactorily, in my judgment, to all of the onslaughts of the dissents were separate concurrences. Ironic as it may seem, i, i think higher percentage of the worst opinion of the court not in result, but in reasoning are unanimous once. So, this is part of the dialogue judges talking to one another. Sometime this changes mind, here again i may go to Justice Ginsburg. Since her words are much better than mine, i had the heavy experience once she told the harvard club of washington, of writing a dissent for myself and just one other justice. In time, it became the opinion of the court for which only three of my colleagues dissented. So, there is there is a dialogue going on here. Sometimes after the vote at the conference it may appear that the majority is here in the minority is here, the when people start writing you begin to see not just the strengths of different argument but weaknesses as well. So this i think is one of the most important of the dialogue that are taking place. It happens every term, on almost every case. There is also the dialogue between the court and of other branches of the government, such as congress. Congress. For example, in an opinion that most academic think is stilted with 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 the case of Willie Ledbetter whod did not know it then 20 more years because how was she to know that shes not not getting paid right. So Justice Ginsburg writes an opinion here, a dissent that says this a statutory interpretation, congress if this is not what you meant by this stupid interpretation, rewrite it. That same day, senator named Hillary Clinton introduced a law to just that effect. But the president at that time, george w. Bush, threatened to veto the bill if it got passed congress. You might remember one of the first things obama did when he went and was to buy to re pass the law, which they did. He had a big signing ceremony calling it the Lilly Ledbetter law. There is also, and is also is the dialogue between the president and the court, a example here are the cases that came out of wonton guantanamo and the court saying that they are entitled to due process. George bush kept saying they are entitled to due process. Finally, this is the hardest one to track, there is a dialogue between the court and the people. You may remember the federalist paper called the court but least Dangerous Branch because it had neither the power of the purse, the congress, nor, nor the sword. The president. The only power that the court has is the goodwill that the people hold. And it screwed up a couple of times, as dred scott in the 19th century. There was and continues to be a hullabaloo over the way. Roe versus wade. Finally, there is what i was most concerned about, was the conversation between the dissenter and the future courts. Here we come to what some people have called prophetic dissents. Chief Justice Hughes set a dissent is an appeal to the brooding spirit of the law, to the intelligence of a future date when a later decision may possibly correct the era in which the dissenting judge leaves the court to have been betrayed. Two examples may suffice and then i would say a few words about the Current Court. One example is hugo black in bets v brady, 1942 case. Smith abets was poor, charged with armed robbery, asked for a lawyer and was told that a lawyer could be appointed and paid for by the state was only available in capital cases. The Supreme Court upheld the state Court Decision and heres what black said. The sixth amendment stands as a constant admonition that of the constitutional safeguards that provide the loss, justice will not still be done. It embodies a realistic recognition of the obvious truth of the average defendant does not have the professional legal skill to protect himself one property for a tribunal with power to take his life or liberty. Where the prosecution is presented by experience i learned counsel. That which is simple, orderly, and necessary to the lawyer, the on trade lehman may appeared intricate, complex, complex, and mysterious. That was 1942. Over the next 20 years, every time a six the memo in case on representation by lord can be for the court, this is there, they kept having to do it. Eventually what happened, every single case was overturned on a technicality because in a succeeding case they said you 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. The court cap finding lack of mental capacity, technical cases to keep overturning it but they kept shying away from overturning. Let me tell you story here which tells you why the ascent is important but how the court works. When, by the early 1960s the court was ready to over rule Betts V Brady, the court lauren tells his cord to start looking for cases involving the sixth amendment three cases, the first one involved a man who sexually sexually molested his son and daughter and there is witnesses both, this guy was guilty, the court was not in favor of overturning betts versus brady for a sexual assault. The second one about two guys who had committed an armed robbery, one of them as my son, the former former prosecutor used to say, did the right thing. He ratted out his colleague. However, the court had appointed a lawyer but now the lawyer had a heart problem because he had one client who is still pleading innocent and another who said guilty and he did most of it. 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 someone who is clearly guilty. Enter Clarence Earl gideon as everyone knows as henry fonda. He allegedly, allegedly i say, had robbed a pool hall in florida was convicted on the basis of testimony of someone who think is the guy who really did it. He gets to prison where he spent a lot of his life and he writes a hand written petition to the Supreme Court to review. The court takes it as a petition, he did not have to pay the fee and all of that that comes up. The Court Appoints a lawyer to represent him in the Court Unanimously overturns bets on the basis of what hugo black had written 20 years before. In a gesture of gesture of extreme make the amenity, award assigns the case to black who writes the opinion. He later said when Betts V Brady was decided i never thought i would live to see it over rule, but he did. Most authors of great dissents do not live to see their ideas vindicated. John Marshall Harlan in plessy, all were window homes in other cases and brandeis is in the minds of many scholars, including myself, obviously, the author of two of the greatest dissents that were ever written. One is in whitney versus california which is technically a concurrence but is really a dissent which which he laid down what is the basis of modern First Amendment speech. It wasnt wasnt finally accepted by the court for 40 years. But in the end, when the Court Finally did adopt it it was along the lines of what brandeis has laid out i