by Michael Avery (ed). New York: New York University Press, 2009. 304pp. Cloth: $29.95. ISBN: 9780814707234.

Reviewed by Lynne S. Viti, The Writing Program, Wellesley College. Email: lviti [at] wellesley.edu.


This collection of eight simulated dissents by practitioners and law professors who specialize in constitutional rights and civil liberties is intended, according to Editor Michael Avery, to simulate dissents that never happened, but should have. Focusing on a civil liberty opinion by the Rehnquist Court between 1984 (predating Justice Rehnquist’s chief justiceship by two years) and 2003, each chapter includes a thorough summary of precedent and the facts giving rise to the litigation, followed by a strongly argued, extensively footnoted dissent. In theory, this seems a creative way to demonstrate how the Supreme Court under Chief Justice Rehnquist chipped away at, and in some cases completely rolled back, liberties that the Warren Court had established, and that the Burger Court to some extent kept in place. In practice, however, the book resembles a standard anthology of thematically related law review articles.

The weakness of WE DISSENT has more to do with the fact that it misses its intended audience, than any inherent flaw in the carefully constructed, well developed and supported arguments each author makes. In his Introduction, Avery asserts that in the interest of widening the debate about constitutional law, the authors have aimed for “a style that is accessible to the non-lawyer reader” (p.5). This is a worthy goal, but one hardly achieved. One dissent contains fourteen pages of footnotes, nearly as many as the “opinion” itself. Chapters are replete with sophisticated, sometimes arcane legal theories and concepts ranging from subjective intent in pretextual traffic stops to” the dangers of an expansive qualified immunity doctrine” (p.182). Those untrained in the law will almost certainly find these areas tough going.

Nevertheless, the book can serve as a valuable resource for teachers of constitutional law and advanced legal studies. The case background notes are useful to prepare students to read actual Supreme Court opinions. And the dissents can be used as models for constructing well supported progressive counterarguments to Rehnquist-era decisions in areas of law dear to the hearts of civil libertarians.

Avery’s dissenters, to a man and a woman, are clear about what they see as the role of the Supreme Court in our society; they espouse what Cass Sunstein calls a “perfectionist” philosophy, one which believes the Court should play a central role in making American society a better, fairer one. As Avery writes, these chapters’ eight dissents offer “a vision of constitutional law in the United States [*565] that differs considerably from the recent jurisprudence of the United States Supreme Court . . . a vision that takes seriously a commitment to democratic values, social justice, and racial equality and that insists upon governmental accountability to our citizens and others protected by the Constitution” (p.1).

In the opening dissent to ALDEN v. MAINE (1999), Erwin Chemerinsky of the University of California at Irvine Law School and a frequent advocate at the Court, presents a vehement rejection of sovereign immunity. The facts of the underlying case are certainly intelligible to a second or third year law student with a deep interest in this area of the law, but it is a stretch to think that a lay reader could follow Chemerinsky’s discussion of why the doctrine of sovereign immunity flies in the race of the supremacy clause. This opening opinion, like the seven that follow, is written more or less like a law review article, not a dissent.

Subsequent dissenters excoriate the Court’s decisions in: ARKANSAS EDUCATIONAL TELEVISION COMMISSION v. FORBES (1997), allowing the exclusion of a third party candidate from a televised debate on a public station (the volume’s most readable and succinct dissent, by Jamin Raskin); CUYAHOGA FALLS v. BUCKEYE (2003), holding that a city conducting a voter referendum opposing a low-income housing development did not offend the equal protection clause because there was no intentional discrimination by the city (a long and pensive essay by Eva Paterson and Susan K. Serrano, with those 14 pages of footnotes).

Three dissents in this collection focus on cases that would make good fodder for discussions in undergraduate constitutional law courses, as well as for graduate seminars in constitutional history and law school seminars that allow for close reading both of full decisions and discussion of the arguments set forth by the justices. In his dissent to WHREN v.UNITED STATES (1996), Tracy Maclin rejects the Court’s decision concerning a pretextual traffic stop – one resulting in a drug arrest. In WHREN, one of the more perplexing decisions of the Rehnquist era, the Court rejected the defendants’ Fourth Amendment challenge to the stop. The Court unanimously decided that even when established police policy stated otherwise, officers could conduct a traffic stop as a pretext to search for drugs, and that this did not amount to a violation of the Fourth Amendment. The question of the subjective intent of police in such a case is a fascinating one, particularly since in WHREN, the Court appeared to go well beyond the “good faith reliance” standard articulated by the Burger Court in police inventory searches of motor vehicles. Besides presenting a thoroughgoing account of the history of the Fourth Amendment and police conduct in traffic stops, Maclin adds a dose of realism to the WHREN Court’s Fourth Amendment analysis, writing, “At its core, the [Fourth] amendment is aimed at discretionary police power”(p.116). Wishing to assure black motorists, like the defendants in WHREN, an “effective constitutional remedy,” Maclin endorses a remand of the case and a deeper analysis by the Court of Appeals into whether the police officer’s stop deviated from written, established police guidelines: “If it is determined that the [*566] stop was a departure from standard practice such that a reasonable officer would not have made the stop, then the seizure was arbitrary and in violation of the fourth Amendment’s bar” (116), and the exclusionary rule would apply.

Two other dissents are particularly noteworthy: editor Avery chooses to dissent from the Court’s opinion in COUNTY OF SACRAMENTO v. LEWIS (1998), a substantive due process case arising from a high speed police chase of a motorcycle, a process that ended in the death of the sixteen year old passenger. Contravening the majority opinion (by Justice Souter, joined by Justices Ginsburg and Thomas, with separate concurrences by Stevens and Rehnquist), Avery argues that the slippery “shocks the conscience” test should be replaced by a “reckless disregard” standard: “The appropriate test for whether an officer has committed a substantive due process violation in connection with a high-speed police pursuit is whether he has caused an injury by proceeding with reckless disregard for public safety” (p.145).

The third dissent which may be most fruitful for analysis and discussion in the classroom is Marjorie Cohn’s on CHAVEZ v. MARTINEZ (2003). Her compact and succinct argument not only relies on her cogent analysis of MIRANDA and its progeny, but also calls for the Court to pay more heed to the International Covenant on Civil and Political Rights and the Convention Against Torture (p.153), both treaties ratified by Congress. In this case, a police officer repeatedly and aggressively questioned a defendant who had been blinded and seriously wounded in an altercation with Oxnard, California police. During a 45 minute interrogation in the hospital emergency trauma room, “The medical staff asked Chavez [the police officer] to leave the trauma room several times, but he repeatedly returned and resumed questioning Martinez [the defendant]” (p.155). As Cohn notes, dissenting Justices Stevens, Kennedy and Ginsburg introduce the term “torture” in their rejection of the majority’s finding that there existed no basis for Martinez to claim a violation of his Fifth Amendment right against self-incrimination because his ostensibly coerced statements were never used against him in a criminal prosecution. Taking her cue from this analysis and determining that Chavez clearly violated the Due Process clause, Cohn goes a step farther, arguing convincingly that the Court should factor the precepts of international human rights treaties into the due process analysis. In the post 9/11 world, where ordinary American citizens as well as lawyers and judges have increasingly inquired into the legitimacy of waterboarding and other forms of aggressive interrogation amounting to “torture,” Cohn’s dissent is well worth reading and taking up in the classroom.

David Rudofsky’s dissent to SAUCIER v. KATZ (2001) rests on a highly academic and sophisticated parsing of the doctrine of qualified immunity. In the final chapter, Abbe Smith writes a fascinating dissent to STRICKLAND v. WASHINGTON (1984), complete with a disquisition on GIDEON and later right to counsel cases. She examines the tragic outcome when wholly incompetent counsel in capital cases, “walking violations of the Sixth Amendment” (p.205, citing David Bazelon), fail to observe even the most [*567] basic ethical norms of the legal profession.

This collection of scholarly notes with a decidedly left-leaning bias is not in the same vein as the more easily digested, instantly engaging work of the Jeffreys (Toobin and Rosen), or Court watchers Dahlia Lithwick or Nina Totenberg. Rather, this is a wholly serious book, destined only for academia.

Bazelon, David L. 1973. “The Defective Assistance of Counsel.” 42 CINCINNATI LAW REVIEW 1-46.

ALDEN v. MAINE, 527 U.S. 706 (1999).
CHAVEZ v. MARTINEZ, 538 U.S. 760 (2003).
COUNTY OF SACRAMENTO v. LEWIS, 523 U. S. 833 (1998).
GIDEON v. WAINRIGHT, 372 U.S. 335 (1963).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
SAUCIER v. KATZ, 533 U.S. 194 (2001).
STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984).
WHREN v. UNITED STATES, 517 U.S. 806 (1996).

© Copyright 2009 by the author, Lynne S. Viti.