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May Book of the Month: Dissent and the Supreme Court

Dissent and the Supreme CourtDissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue
by Melvin I. Urofsky
Reviewed by Tony Pelczynski, Reference Librarian


Dissent and the Supreme Court, by legal historian and professor of constitutional history Melvin Urofsky, is a dense but lively examination of the evolution of the written dissent in U.S. Supreme Court Constitutional jurisprudence. In less skillful hands, such a topic might not spark much excitement; here, Urofsky manages to keep things moving along briskly enough for the casual reader.

After beginning the book with a relatively brief but informative introduction, including side-trips explaining concurring and “seriatim” (separately-written) opinions, Urofsky traces the history of U.S. Supreme Court dissent largely chronologically, with chapters devoted to particularly significant cases and prolific dissenters (including Louis Brandeis, the subject of a separate Urofsky biography). Early on, Urofsky lays out the historical arguments for and against the very idea of dissenting judicial opinions. To grossly oversimplify, this debate breaks down to something along the lines of: dissent (in the author’s words) “weakens the force of the decision and detracts from the court’s institutional prestige”; versus (quoting Chief Justice Charles Evans Hughes) “[a] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” The tension between these competing beliefs regarding the role of the judicial dissent, and how that tension has played out on the Court, provides the focus of Dissent and the Supreme Court.

Dissent CourthouseThroughout the book, Urofsky pays particular attention to dissenting opinions that have directly impacted later Supreme Court jurisprudence in areas of universal national concern. For example, he succinctly explains how dissents written in the 1883 Civil Rights Cases provided the analytical framework for the Court’s later upholding of the 1964 Civil Rights Act. Likewise, Urofsky devotes an entire chapter to Brandeis’ famed dissent in Olmstead v. U.S., a 1928 case in which the Court upheld the conviction of a Prohibition-era bootlegger convicted on the basis of what would now be considered illegally-obtained wiretapped telephone conversations. According to Urofsky, Brandeis’ dissent ultimately “reinvented Fourth Amendment jurisprudence,” albeit belatedly, as the Court fully adopted Brandeis’ position and overturned Olmstead completely in 1967.

While the significance and role of the dissenting opinion has waxed and waned over time, we are currently living in an era where, by the author’s accounting, four out of five U.S. Supreme Court decisions include one or more dissenting opinions. And since the book’s original publication in 2015, the Court (and, perhaps, the nation) may have become even more ideologically divided. Clearly, judicial dissent has become a ubiquitous feature of U.S. Supreme Court jurisprudence, and will remain so for the foreseeable future. To help make sense of it all, Urofsky has written a well-researched and highly readable examination of the history of judicial dissent in U.S. Supreme Court jurisprudence, its evolution and function over time, and why it matters.

Dissent and the Supreme Court was generously donated by Shannon K. Mauer of Duane Morris LLP, as part of our February Book Drive.

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May Book Drive

Book Drive

Each month we will seek donors to purchase a new title for the Law Library. Here is our Wish List for the month of May, featuring books about the infamous Dred Scott case and cannabis. Growing our collection is about so much more than a single book—it is a living demonstration of how the Library expands the public’s access to justice and provides legal practitioners with the tools they need to represent members of our local community. Please see our Donation Guide for more ways to support the Law Library.

Dred Scott

Dred Scott v. Sandford
Opinions and Contemporary Commentary

Written by Douglas W. Lind
$85, Paperback, 2017
ISBN: 978-0-8377-4061

Joint Tenancies

Joint Tenancies: Property Leasing in Cannabis Commerce
Written by Michael Newton Widener
$55.95, Paperback, 2018
ISBN: 978-1-64105-064-7

To donate, please contact sflawlibrary@sfgov.org or call (415) 554-1791.  We appreciate your contribution!


Recent Book Drive Donations

Thank you to Shannon K. Mauer of Duane Morris LLP for generously donating Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialog, part of our February Book Drive.

Thank you to Robert Gates for generously donating The 2018 Solo and Small Firm Legal Technology Guide, part of our February Book Drive.

Thank you to James Michel for generously donating Fair Credit Reporting and Consumer Bankruptcy Law and Practice.

Please take a look at our Book Drive page to see Wish List items from prior months. We are still wishing for these books!

Thank you for your support!


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March Book of the Month: Table for 9

Table for 9Table for 9: Supreme Court Food Traditions & Recipes
by Clare Cushman
Foreward by Ruth Bader Ginsburg

Reviewed by Ruth Geos, Reference Librarian

Although today the Supreme Court is thought of as a highly divisive collection of Justices, the truth, as deliciously revealed in Table for 9, is that it has actually been the food shared by the members of the Court over the years that holds it together as a community of legal thinkers.

Starting with the Supreme Court’s inaugural session in 1790, then in New York, with 13 toasts at the Fraunces Tavern, the members of the Court (who originally lived and supped together in a local boardinghouse) have always lunched together, and savored shared moments of food and drink. Indeed, Chief Justice John Marshall bottled his own favorite brand of Madeira, with a Supreme Court label.

Table for 9 is in fact a biography of the Court through food: a palatable history of these American times, and reveals so much more about the Court and its working process than the erudite opinions, splits in philosophical bent, and the major social issues the Court faces as part of its work. It is intriguing to see that currently, lunch recess on days of oral argument is one hour, in the Justices’ Dining Room, where legal discussions are strictly off-limits—and the Justices pay for their own meals. Over all the years, the tradition of sharing meals, dinners, seders, welcome and farewell celebrations, has become an integral part of the Court, building a special kind of collegiality that food does best.

The late husband of Ruth Bader Ginsburg was renowned for his culinary skills and devotion to feeding the Court, but so was Justice Sandra Day O’Connor, with her Southwestern legerdemain. Chief Justice Warren Burger invented Oysters Le Burger, and Justice William O. Douglas was renowned for his martini skills. Justice Thurgood Marshall was trained to cook by his grandmother in case the law didn’t work out, and Justice Harlan Fiske Stone was considered the one great gourmand of the Court, with a deep appreciation and knowledge of cheese and wine. Justice Ruth Bader Ginsburg, who contributed the foreword, makes evident that unlike her esteemed colleagues, she herself is better out of the kitchen:

I was phased out of the kitchen at an early age by my food-loving children, who appreciated that Daddy’s cooking was ever so much better than Mommy’s. So I will not try out the recipes in this book myself. But I will enjoy turning the pages, pausing at certain photographs, and inviting a child, or now grandchild, to make something delicious for me. Bon appetit!

Laced through with recipes, history, photos, and sidelines on the individual Justices’ favorites (Justice Brandeis loved ice cream, we learn), Table for 9 achieves the best of biography, history, cookbook, and the delights of putting all those ingredients together in the freshest possible way. Also included is a useful Appendix of Justices, 1789 to present, including the dates of appointment and service, and the name of the President appointing him or her to the Supreme Court, along with an index which allows you to jump to Pickled Pigs Feet (p. 59) or Cherry Bounce (p. 38).


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Coming to a Theater Near You: 2 Supreme Court Justice Biopics

SFLL FilmsComing attractions! If you are lucky, you will soon be buying a ticket for or watching on your home streaming service two new, exciting, and very different Supreme Court dramas. The films are about the paths of courage, imagination, and drive for equality pursued by Thurgood Marshall and by Ruth Bader Ginsburg in their early careers as lawyers—preludes to each of their years of service as Justices on the Court itself.

The first—with an anticipated release date of October 13, 2017—is Marshall. Called a thriller by Variety, Marshall tells the story of the bold defense by Thurgood Marshall, then a young lawyer of 32, of Joseph Spell, a black chauffeur accused by his Connecticut employer of rape and attempted murder. These lurid charges became infamous in the tabloids at the time. Co-starring Chadwick Boseman as Thurgood Marshall, and Josh Gad, as Samuel Friedman, a lawyer with no trial experience who offered to join with Marshall for the defense, the cast also includes Keesha Sharpe as Marshall’s wife, and Kate Hudson as the socialite accuser. For a spine-tingling advance peek of a drama of bigotry and truth in a dark time—with books as an ally—try the trailer.

My Own WordsThen, slated for 2018 is the Ruth Bader Ginsburg 1970s-set movie, On the Basis of Sex. This film highlights her championship of equal rights, focusing on her successful appeal of a landmark tax-gender-discrimination case, Moritz v. Commission of Internal Revenue, which stated that dependent care deductions allowed to single women and divorcées could not constitutionally be denied to single men. First announced to be played by Natalie Portman, the role of RBG will now be carried by Felicity Jones, with Armie Hammer cast as her husband and co-counsel, Martin Ginsburg. A narrative on the Moritz case, and their work together, by Martin Ginsburg, (including contentions as to who had the bigger room at home to work in), is also part of Justice RBG’s new book, My Own Words, found in our own San Francisco Law Library collection.

Stay tuned for the sflawlibraryblog film reviews, and if you see these films before we do, please do give us your own comments, reviews, or your own favorite Supreme Court movies from the past.