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Dissent and the Supreme Court

Dissent and the Supreme Court by Melvin I. Urofsky
Jan 10, 2017 | 544 Pages
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    Oct 13, 2015 | 544 Pages

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    Oct 13, 2015 | 544 Pages

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“Ambitious . . . Urofsky’s extraordinarily careful analysis and sense of historical depth make ‘Dissent and the Supreme Court’ an important book, one that explores some of the most significant dissents in the history of that institution . . .riveting . . . Indeed, his book can serve as a guide, a way of determining what constitutes a really fine and compelling dissent.” —Dahlia Lithwick, New York Times Book Review

“One of the nation’s great legal historians . . . masterfully recounts the history of dissent on the court, from its early days, when dissents were rare and strongly discouraged, to the modern era, when they often outnumbered majority opinions.” —David Cole, The Washington Post

“Balanced, and highly illuminating . . . For anyone interested in the Constitution, the Supreme Court, and the American democracy, lawyer and layperson alike . . . An intriguing account . . . A significant contribution to our understanding of the Supreme Court and the Constitution.” —Stephen Rohde, The Los Angeles Review of Books

“A wide-ranging and intriguing study of how the justices of the United States Supreme Court have dissented from majority opinions and how we should think about them . . . Invaluable . . . Creative and well-researched.” —Linda Przybyszewski, American Journal of Legal History
“Brilliant . . . Urofsky’s expertise as a historian and student of the Supreme Court brings depth and richness to his treatment of this fascinating subject . . . A good read for those who find the workings of the Court of special interest.” —Ronald Goldfarb, Washington Lawyer
“Incisive . . . Dissent and the Supreme Court traces the dissent’s noble history and shows how many of the most important protections of American society – free speech, racial equality, individual liberty – began their lives as dissents pushing back against a court that was not yet ready to hear them.” —Joshua J. Friedman, Columbia Magazine
“A welcome perspective on a vibrant, ongoing constitutional dialogue.” —Publishers Weekly

Table Of Contents


Introduction  ix
1. Dissent and the Constitutional Dialogue  3
2. From Seriatim to the Opinion of the Court  37
3. From Marshall to Dred Scott  55
4. Field, Slaughterhouse, and Munn  82
5. John Marshall Harlan: The First Great Dissenter  105
Mise-en-Scène 1: Harlan and Holmes in Lochner v. New York (1905)  137
6. Holmes and Brandeis Dissenting  150
Mise-en-Scène 2: Brandeis in Olmstead v. United States (1928)  194
7. The Return of Seriatim  209
8. The Prima Donnas I: Personalities and Issues of Wartime  227
Mise-en-Scène 3: Wiley Rutledge and In re Yamashita (1946)  257
9. The Prima Donnas II: Incorporation, Criminal Procedure, and Free Speech  275
Mise-en-Scène 4: Black in Betts v. Brady (1942)  306
10. Lower Federal Courts, the States, and Foreign Tribunals  318
11. Continuing Themes, from Warren to Roberts  339
Mise-en-Scène 5: Marshall, Brennan, and Capital Punishment  388
12. Coda  406
Acknowledgments  427
Notes  429
Index of Cases Cited  489
Index  501

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