May be a real victory for short people. Marys book, in the kirby lobby, thank you for sharing. Thanks very much. [applause] [inaudible conversations] next, Melvin Urofsky from the bill of rights book festival, talks about the role of dissent and the Supreme Court. He has an extraordinary array of publications in addition to his definitive biography of brandeis, a life. He has written books on american zionism and his latest book which we are here to discuss is so wonderful and so timely, so provocative that i couldnt put it down. Is dissent and the Supreme Court, its role in the courts history and its role in constitutional dialogue and i cant wait to discuss it with you, please join me in welcoming Melvin Urofsky. [applause] you dont need to, this great book, we had a blast, we couldnt resist starting to talk about it. I have to begin with the obvious question. It was a logical step to go from there because brandeis is one of the great dissenters and according to his opinion in the whitney case, i ran across an article about dissents included in almost every constitutional law textbook. Then i ran across a very interesting statistic that up until the late 1930s most Supreme Court opinions run an average between 90, and 96 almost every term of unanimity which from what we have today, if you read about one thing this leads you to another and the problem, preliminary research which way the book are going and others then i 5 would get involved. A number of articles were of no use to me. A lot were law reviews that take a particular descent and park it which is something i did as a law school but i havent done again. They were worse than useless because Political Science these days, more interested in counting than analyzing. And more dissension on tuesday and thursday. And what i wanted to explore what will the descent itself plays. And what is buried, the subtitle and the book and notion of the constitutional dialogue, most descents are just the forgotten as soon as they a majority of cases, some of the ring on. We have to deal with them, not just judges sitting now but the future. A good example of this is hugo blacks descents investment brady, raises the question whether the sixth amendment apply to states and his argument is you cannot have a fair criminal trial unless there is an attorney third. Over the next 20 years, it is like bancos goes, every time a case came up involving lack of a lawyer, there is hugo black saying you have got to have one. Until gradually the court is won over, chief Justice Warren did wonderful thing. He never thought he would live to see it overturned. This gets into this dialogue, every succeeding sixth amendment case, there is black descending and they go to this thing about special circumstances will avoid brady until this is won over. That is what i was looking for. How do dissents play in the constitutional dialogue. A dialogue among the justices and Ruth Bader Ginsburg tells a wonderful story about how, this and went over a majority of the courts. It was a wonderful feeling. And might do it that way. And hamilton calls the court the least Dangerous Branch because they have neither the power of the purse nor of this word. How come we listen . How come the American People for the most part after a case like brown, how come the south did not rise up, for the most part the courts prestige depends on its ability to communicate with the American People. This is becoming more obvious now because more and more justices are giving talks, writing books, but brandeiss clerk still the same story that when he wrote a dissent they would come a point where he would turn to the clerk and say i think we made our case, how do we make it more informative . How do we make it more awe open when people understand what is going on which is too long at question entered your question. It brings of the significance of this book, the idea of the constitution as a conversation, fundamentally different points of the essential to the evolution of constitutional dialogue, central to what were doing at the Constitution Center by bringing together people, that is why this book is so significant. Lets start from the beginning and move a. I want to talk about brandeis, our favorite topic but lets begin with John Marshall, John Marshall comes to the court, is an enfeebled institution, first appointees turning down the office because it is not worth having and he conceives of a single court by persuading colleagues to converged around there unanimous opinions, he rejects the british tradition as you describe it, he gets the court to speak as a court. This archrival, Thomas Jefferson, marshall is letting people hide behind a cloak of unanimity. Tell us about marshall and how to pull off. I dont know how many of you have i always assign one in my class. I asked students tell me what is said here. It is very confusing, if you have seven opinions and then you count four of some say this but they dont all say at the same way so we think this guy won but we are not sure. In terms of common law tradition where you can use a case for president , this case will affect others similarly situated. It doesnt help a lot. Oliver ellsworth, the predecessor to John Marshall, starts trying to get the court to deliver an opinion of the court. Only partially successful. Marshall believes in it the same way chief justice man still, he was chief justice, instituted the notion of an opinion in court. There are a lot of people even today who do not believe in dissent, it should all be squashed because the court should speak in one voice. This is marshalls view not just that dissent could be squashed, but not a lot of important descents at this time. He was able to convince his colleagues that would be better. He wrote were delivered almost all of these. Not only did he get from to have an opinion of the court but for the most part they wanted him to deliver that, whether he wrote it or not to. This drove Thomas Jefferson crazy partly because the judiciary was the last part of government to remain in federal stands. Jefferson was wary with no real good reason that the court would undo everything he at the jeffersonian republic might do, didnt happen. Marshall set the stage for this. And it did work. The court by the time marshall leaves in the 1830s is a much more powerful instrument, it has handed down at least a dozen classic decisions that affected the country ever since, and set the stage, there was a chapter called the return as we get since the 1940s we have almost gone back to that, almost every term at least one case says seven, eight or nine opinions. Let me ask you about why marshall abscission succeeded in his time and why it later fails. You do give statistics to marshalls tenure as chief from 18311835, more than a thousand cases, 87 had dissenting opinion, 7 , lowest of any period in court history. By contrast after the judges bill of 1925, you say that the number of unanimous opinions before the act was 91 . Melvin urofsky the act was 85 . Why did judges built decrease the number of unanimous opinions and more broadly let me raise the question starkly. One chief Justice Roberts took office he told a bunch of interviewers and gave speeches and i had the honor of an interview with him for a book with a thrilling title was Supreme Court, one of the most creative book titles ever imagined the jet companion book to the Supreme Court ceres, he talked to me for this and he was going to make marshall his model and to encourage unanimous opinion. And what was it that changed between marshalls time and his time that made it harder to achieve. We start with judges bill, William Howard taft, in the year host 20s, Louis Brandeis and felix frankfurter, most of the cases to be decided and decided right. When i was doing research on it congress had given the right of appeal to all sorts of things to go up to the Supreme Court. I went through two years of Supreme Court reports in the host 20s, there were local bankruptcy cases, bankers cleans, there were tort cases, disputes. I brought a horse, he delivered a new type of thing, the sort of stuff that would be decided in either a Magistrates Court for no higher than a local state court but because of the way congress framed the court had jurisdiction the old thing, i will fight it up to the Supreme Court. Before 1925 you could. What calfss vision was, then the Supreme Court become primarily a constitutional court, only three jurisdictions, one is the original jurisdiction assigned by the constitution, disputes between states and those involving ambassadors. Secondly constitutional questions involving whether or not a particular actor violated a clause in the constitution and third, statutory interpretation of congressional acts. Once you limit it to those now it was important not only to decide but to decide rightly. Which means people with strong constitutional brandeis, mcreynolds is another story, they are looking to be consistent from one constitutional case to another. If you are on the short side of the vote you dont want to be associated. It used to be people disagreed would note the disagreement. Now you start filing but he only had one clerk so for him to write this and especially the type he wrote involved an enormous use of resources of time. Justices now have four clerks so it is easy for someone like and and and scalia to say clerk 1, do the research on this dissent, clerk 2, you do it on this, they do the research when he can hand out four dissents that would have been possible. I told jeff before if i had Research Assistants who did all that work for me i could write a book every three months. Host as opposed to every four months. Guest another thing that happened is the arrival of the prima donnas. This happened with the roosevelt appointees, felix frankfurter, hugo black, William Douglas and robert jackson. A nastier group of people you could hardly imagine. Host tells the frankfurter story, what he said on the train home when the chief justice drops dead in the middle of the deliberation of brown vs. Board education, frankfurter says this is the first indication i ever had that there is a god. Charming. Guest frankfurter was a nasty person in many ways unless you agree with him. At conference he would talk for 15 minutes because that was the length of a lecture at harvard law school. He made the assumption that his colleagues didnt know anything so he had to teach them. Host what did douglas do . Guest he would go to the couch and read the mail. Douglas would give it to him every time, sometimes when there was a bad argument before the Court Douglas would pass down a note saying i understand he was one of the students of harvard. After frankfurter finished one of his lectures douglas would say i came in ready to vote with felix but you talked me out of it and Little Things like that. One time frankfurter told rutledge, the most mildmannered and sweet person you should do what i tell my students when we do statutory interpretation, you should read the statute three times before you make any judgment. Needless to say this did not win him many friends on the court and when they refuse to follow his lead he became more and more considered. He wrote more dissenting opinions that majority opinions, even if he agreed with the results of the thing he always fought whoever wrote got it wrong so he would write a concurring opinion saying i agree, and book reviewers contrast frankfurter who use a is remarkable for his lack of influence and there never cited today with the first great dissenter John Marshall harlan who exerted a kind of profit force, talked about the prophetic sense, in plessey versus ferguson, the only people to condemn constitutionality of descending but equal, the Civil Rights Act of 1875, and the First Amendment cases set forth a vision that the court near the century later would embrace and Thurgood Marshall reads the dissent in plessey for inspiration before he argues brown. What is the difference between the ineffective dissent of frankfurter and the prophetic . Guest i think my friend mark gave me a very interesting. He said you cant tell the great dissents until history has made his judgment. He may be getting some great dissents from the Roberts Court but we dont know it yet. Because we dont know what influence there is. Brandeiss opinion in whitney takes 40 years before the Court Catches up and about the freespeech case until the Court Catches up to it. His opinion where he sets forth the right to privacy and a new view of the Fourth Amendment takes almost 40 years for the court to catch up with that. Harlan was dismissed as a crank. Just before brown is written there is an article in the law review, remembering Justice Harlan in which there was this amazing fact that there wasnt a single constitutional law textbook then in use in the United States that included harmons descend in either the civil rights cases for plessey versus ferguson. Except by the naacp. The interesting thing we are all familiar with the phrase, the constitution does not recognize any class, color or things like that. Which was a key phrase which use during the civil rights cases, now has been revived by the Roberts Court majority in the opinions that have struck down efforts in louisville and seattle to avoid resegregation. And stopping action to stop talking about it. And the fisher case, the latest of the affirmativeaction cases, and look for what Sonia Sotomayor is going to write this part of being the great dissenter involved being on the right side of history. You cant always know at the time you are writing. I cant resist. The greatest opinions about privacy and free speech. And a blockbuster celebration here, and we will dig into that, this is just a teaser for things that come in in june but lets begin with whitney and technically a concurrence and a few beautiful words theyre so inspiring. Those who won our independence believe the final end of the state was to make men free to develop their faculties and in its government the delivered forces should prevail over the are better, they valued liberty both as a end and as that means, they believed liberty to be the secret of happiness and courage to be the secret of liberty. It was almost a direct quotation at pericless funeral as translated by Alfred Zimmer in a book brandeis valued more than common law. Why is the whitney decision by many accounts the greatest same to free speech effort and what made it so precious . Guest go back in history here. All of you knows that modern freespeech jurisprudence really begins with holmess descent of abrams in which he uses the market of ideas but theres a problem. It is a wonderful phrase for a philosopher which holds always saw himself as. It is not a very good guy to lower court judgment. The Supreme Court, one of its functions is to provide guidance to Lower Court Judges win cases come up. What brandeis does in whitney is shows why the First Amendment is important to democracy. Not too a philosopher but democracy. He always said the highest Office Anyone could hold in a democracy was that a citizen. But being a citizen meant you had responsibilities. You are supposed to take part in the dialogue over Public Policy. You do this a number of ways. By the candidate you vote for, going to town hall meetings, writing letters to the editor. All these sort of things which are fairly common. If you are going to make an intelligent decision about Public Policy then you have to hear all the points of view. That is what he is saying in whitney. We cant shut people up. They have to hear, the citizen has to hear not only what he already agrees with, but opposite points of view so he can then make an informed decision. Holmes later on after this case will as you recall make memorable statement that the First Amendment is not for speech we agree with but for speech we hate and brandeis really is leading into this. You have to be able to know all the different views and his view was the citizenry is smart enough to dump the wrong ones. Madison and jefferson had a vision of this. They said the speech can only be likely to create violence. That extraordinary principle not shared by any european democracy is enshirined in the american constitution. He says they believe in the freedom to think as you will and speak as you think are means of spreading political truth. Without free speech and Assembly Discussion would be futile and with them the discussion of adequate protection against the dissemination is inert and public discussion is a political duty and this should be a fundamental principle of the government. He starts with the facts and then he is expanding slowly and reaching this extraordinary this is what makes, i think, a great dissent in one way. He is laying down principles. He wasnt known for his eloqueneloquent behavior. One of his sectaries said the letters read like point one two and three. You quoted him. He had