I Dissent edited by Mark Tushnet

gavel on black and white coverI Dissent: Great Opposing Opinions in Landmark Supreme Court Cases by Mark Tushnet (2008)


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

I added the [sometimes] because Scalia’s dissent is in two of the cases and I’m pretty sure when I get to them, he will be wrong, again. (His opinions always were wrong in MY opinion based on general principle!) So I decided I couldn’t wait and went to the last case first because it was a Scalia dissent.

Oddly, other cases have two justices listed in the table of contents as dissenting. However in the Scalia cases, Clarence (gag) Thomas was also listed in the chapter as joining in the dissent in Lawrence v. Texas, but not in the Table of Contents maybe because he wrote a separate dissent. Of course, now that Scalia is dead (RIH) it is a common joke that Thomas will not know how to vote anymore. Plus the mockery that after the many decades on the bench, he had NEVER SPOKEN during a case presented to the Supreme Court until Scalia died (2016).

Lawrence is about overturning the anti-sodomy laws from a case where a aggravated neighbor decided to rat out his homosexual neighbor by calling a fake police report on a fight at their house, and when the cops arrived, they were caught in flagrante delicto. What I don’t understand, though, is now (2016) the Michigan State Legislature has taken time out of their “busy” legislative session with the Flint water crisis, to pass a new anti-sodomy law in direct violation of the Lawrence decision. How can they do that? I guess they get away with it, until some other poor wretch gets an angry neighbor peeping and the whole thing goes through the court system AGAIN. Waste of time and money and pointless. This one also may intersect with the case dealing with abortion and the “right to privacy” since obviously their right to privacy was violated by the neighbor and then the police, who had no probable cause to break in to their home since no signs of fighting could have been going on since it was falsely reported.

The book does make it hard to understand the cases involved though because it doesn’t really simply state “Sodomy was deemed a constitutional right by the majority; Scalia and Thomas disagreed in their dissents. Scalia disagreed because [incomprehensible gibberish] – seriously, reading that opinion was a hard slog and very difficult to find his point. So that was very disappointing. Much clearer language about the aspects of law the decisions were based on would have been helpful.

Cases covered include:

  1. Marbury v. Madison, 1803 — The legislature is entitled to all the deference that is due the judiciary.” Pennsylania Supreme Court justice John Bannister Gibson
  2. McCulloch v. Maryland, 1819 — “Experience should Teach us Wisdom.” President Andrew Jackson
  3. Dred Scott v. Sanford, 1857 — “Among those for whom and whose posterity the Constitution was ordained and established.” Justice Benjamin R. Curtis
  4. The Civil Rights Cases, 1883 — “To enable the black race to take the rank of mere citizen.” Justice John Marshall Harlan
  5. Plessy v. Ferguson, 1896 — “There is no caste here.” Justice John Marshall Harlan
  6. Lochner v. New York, 1905 “Room for debate and for an honest difference of opinion.” Justice John Marshal Harlan and Justice Oliver Wendell Holmes
  7. Whitney v. California, 1972 — “Men feared witches and burned women.” Justice Louis D. Brandeis
  8. National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937 — “Almost anything — marriage, birth, death — may in some fashion affect commerce.” Justice James McReynolds
  9. Korematsu v. United States, 1944 — “The Ugly Abyss of Racism.” Justice Frank Murphy, Justice Robert H. Holden
  10. Goesaert v. Cleary, 1948 — “Refrain from invidious discrimination.” Justice Wiley Rutledge
  11. Brown v. Board of Education, 1954 — “Our decision does not end but begins the struggle over segregation.” Justice Robert H. Jackson
  12. Baker v. Carr, 1962 — “To attribute, however flatteringly, omnicompetence to judges.” Justice Felix Frankfurter, Justice John Marshal Harlan
  13. Abington School District v. Schempp, 1963 — “A sterile metaphor which by its very nature may distort rather than illumine the problem.” Justice Potter Stewart
  14. Griswold v. Conneticut, 1965 — “I get nowhere in this case by talk about a constitutional ‘right of privacy.'” Justice Hugo L. Black, Justice Potter Stewart
  15. Morrison v. Olson, 1988 — “That is what this suit is about. Period.” — Justice Antonin Scalia
  16. Lawrence v. Texas, 2003 — “Do not believe it.” — Justice Antonin Scalia

This book is filled with really excellent discussion of various points about the cases and why it matters. All particularly relevant today. One of my favorite lines stated that it is unfortunate that under our constitution a judicial remedy is NOT available for all political mischief. And that speaks directly to a case I just learned about today: Vieth v. Jubelirer — Scalia once again on the wrong side of justice — who held that political redistricting to favor incumbents was non-judicial for remedy because the democratic plaintiffs were not “DENIED” representation, they simply had ‘REPUBLICAN’ representation. Racial redistricting was not constitutional but if it coincided with POLITICAL gerrymandering, then it was acceptable. I wanted to vomit here.

Well, this is probably a book worth buying because of the reading complexity and details, especially if you have an interest in constitutional law and how we are slowly  and have been systematically denied justice by the beliefs of appointed for life justices who do NOT have the interests of the people in mind but rather there political or church masters.

book jacket portrait of Dred Scott the freedmanAnother book I am  getting from (ILL) Interlibrary loan is by Mark A. Graber, who has a back cover blurb, and is identified as the author of Dred Scott and the Problem of Constitutional Evil. Who can resist a title like that!




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