Introduction

Abstract

Introduction Melvin I. Urofsky Dissent occupies a very important role in the history of the Supreme Court. While the majority holding is the law of the land— even ifby a bare 5-4 vote—we know that in a significant number of cases, it is the rule es­ poused by the dissenters that will ultimately be accepted as the proper constitutional inter­ pretation. To take but one example, while the majority holding in Plessy v. Ferguson (1896) gavejudicial imprimatur to racial segregation, in the final analysis the eloquent dissent by Justice John Marshall Harlan I—thatthe “con­ stitution is color-blind”—carried the day. Sim­ ilarly, the dissents by Justices Oliver Wendell Holmes, Jr., and Louis D. Brandeis in Olm­ stead v. United States (1928) led to the Court’s adoption of the rule that wire-tapping did in­ deed constitute a search, and that under the Fourth Amendment it required a priorwarrant. In this series, we are interested as much in the dissenters as in the dissents. For exam­ ple, Sandra VanBurkleo looks at the career of William Johnson, often characterized as the first dissenter. Johnson, when viewed in the context of the Marshall Court, often appears to be a loose cannon, and his dissents are not always on target. But he set an example, and subsequentJusticeshave accepted itas a matter of course: that if they do not agree with all— or even part—of the majority ruling, they are free, not only to vote against it, but to explain why. Some members ofthe Court did not value dissent, and none less so than Chief Jus­ tice William Howard Taft, who during his decade on the Bench fought valiantly to “mass the Court.” As Jonathan Lurie points out, Taft believed that the rulings of the Court would have greater impact and influence if they had the backing of the entire Bench. While he of­ ten succeeded, the frequent dissents ofHolmes and Brandeis, joined by Harlan Fiske Stone, vexed him enormously. No doubt his frustra­ tion would have been even greater if he had lived long enough to see practically all of the dissenters’ opinions adopted by later Courts. Two of the most famous nineteenthcentury cases,DredScottv. Sanford (1857) and the Income Tax Cases (1894 and 1895), are no­ table forthe results they spawned. DredScott is often given credit for triggering the Civil War, while the public outcry over the Tax Cases led v vi JOURNAL OF SUPREME COURT HISTORY to the adoption ofthe Sixteenth Amendment in 1913. Lucas Morel and Calvin Johnson note that the Court was far from united in these cases, and that the dissents not only helped to fuel public outrage but also set in motion events to overturn the findings. Had this series been presented a genera­ tion ago, it is unlikely that we would have been all that interested inthe views ofJohn Marshall Harlan I. But ever since Brown v. Board of Education (1954), in which the Court adopted his views on the meaning of the Fourteenth Amendment’s Equal Protection Clause, we have come to have a much greater respect for him, not only as a man, but as a judge, and a good part ofthis new look at Harlan has been the work ofLinda Przybyzewski. After studying these articles, our readers will understandwhy dissent has been so impor­ tant, and why the dissenters—no matter how badly outnumbered they may be in a particular case—all share, to a greater or lesser extent, Mr. Justice Brandeis’s explanation of why he dissented: “My faith in time is great.” ...