Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
The unique role which dissent plays in American law and culture is explored in this edited volume. The book is a product of a series of symposia held at the University of Alabama Law School. Leading scholars were invited to discuss a dissent-related topic and were joined by University of Alabama Law School faculty and others in subsequent commentary. The edited book includes separate chapters and commentary on subjects such as counterfactuals, animus-filled judicial opinions, civil rights, the legal academy, and American society overall.
Editor Austin Sarat is professor of political science at Amherst College and senior scholar at the University of Alabama Law School. In the Introduction to the book, he observes the paradox of how dissent is regarded in American society. On the one hand, “the institutionalized status of dissent suggests that it is affirmed, nurtured, fostered, rather than condemned” (p.2). On the other hand, Sarat admits that though “responses to dissent in state and society are contingent and historically specific, the general tendency is toward the containment, if not outright repression, of dissent” (p.4).
In Chapter 1, Ravit Reichman makes the case for utilizing counterfactual narratives as a method for examining dissent. An associate professor of English at Brown University, she first identifies how Robert Frost’s poem, “The Road Not Taken” is an example of counterfactual imagination’s emphasis on might-have-been alternatives. Second, Reichman demonstrates how Walter Benjamin links redemption with the past in his 1940 work, “Theses on the Philosophy of History.”
Third, she examines the alternative worlds created by E.M. Forster in his 1924 novel, A Passage to India. Finally, Reichman shows how the alleged victim’s testimony in a rape case was presented as counterfactuals to the benefit of both sides. Reichman reminds us of the limitations of counterfactual narratives in contrast to actual dissent: they are generally fictional; they represent tone more than content; and they are speculative in addition to being subjective. In her commentary on Reichman’s chapter, Suzette M. Malveaux of the Columbus School of Law at Catholic University of America asserts “that the court’s use of counterfactuals in judgment is part of a larger, troubling pattern of diminished judicial restraint” (p.43). She adds to the analysis of the dissent opinion in the rape case introduced by Reichman. Because counterfactuals may determine liability and punishment in legal cases, Malveaux suggests training trial court judges and jurors about the significance of the tool. [*10]
Chapter 2 is written by Suzanna Lee, associate professor of French at Georgetown University. Her objective is to dissect the dissents in three recent Supreme Court rulings by distinguishing between those opinions which are influenced by antagonism or “animus” and “a disapproval based on a feeling of harm or disenfranchisement” (p.56). She begins with the 1986 Bowers v. Hardwick decision which upheld sanctions on homosexual sodomy. Lee focuses on Justice Harry Blackmun’s dissent, in which Blackmun opposed sanctions for homosexual sodomy out of concern for actions against individuals. On the other hand, Justice Antonin Scalia’s dissent in Romer v. Evans (1996) openly justifies the value of animus. In Lawrence v. Texas (2003), which overturned Bowers v. Hardwick, Justice Scalia’s opinion in opposition “demonstrates how animus-based dissent can cast itself as a majority opinion precisely by raising the fist of disapproval” (p.82). After comparing conservative dissents evincing animus with liberal dissents with similar traits, Lee concludes that liberal dissents express more concern that the majority has undertaken a morally untenable position and display less malice toward target groups in each case. In her commentary on Lee’s chapter, Heather Elliott, associate professor at the University of Alabama School of Law, reminds the reader that “[e]motions such as animus are not recognized as a basis for seeking legal relief from the federal courts or almost all state courts” (p.95).
In Chapter 3, Harvard Law School Professor Kevin Mack traces the careers of Charles Houston and Loren Miller as a way to demonstrate the influence of dissenting perspectives on the civil rights movement in the United States. Both acknowledged the post-Scottsboro debate over civil rights as the period which made a difference in their lives. Houston served a black clientele while an attorney and taught at a historically black university. Miller largely eschewed his legal training at the outset of his professional career in favor of newspaper and journal writing but later became well-known as a civil rights lawyer. Houston and Miller were allies in fighting against restrictive covenants and other discriminatory devices. Tony A. Freyer, University Research Professor of History and Law at the University of Alabama, commented on Mack’s chapter. Freyer explained how differences between Houston and Miller subsided when Miller “shifted from anger against lawyers and ‘moderate’ legislative or judicial policy making learned in Kansas to Houston’s hard-earned dissident stance of courage and hope” (p.159).
Chapter 4 is contributed by Richard H. Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law. Pildes turns the concept of dissent back on the legal profession by disclosing why law schools and legal scholars tend to avoid dissent. He contends that the nexus between legal academics and government would be damaged if one earned the reputation of presenting only the negative aspects of policies. Further, law schools are careful to guard their connections with judges and justices of various courts so graduates continue to be hired as law clerks. Based on his own experience, Pildes recommends getting involved in practical engagements only when possessing an extensive record of scholarship due to the risks of early-career dissent. He concludes that the “capacity to dissent partly depends on [*11] individual personality but also on structural conditions that sustain that capacity” (p.181). Bryan K. Fair, Thomas E. Skinner Professor at the University of Alabama School of Law, commented on Pildes’s chapter. Fair states that “although I do think Pildes’s concerns are important, I do not think they are unique to legal academics or the legal academy or that his concerns are as important as ones he does not mention” (p.183).
Chapter 5 offers a unique perspective on the impact of dissent on society by Mark Tushnet, William Nelson Cromwell Professor at Harvard Law School. Tushnet begins by referring to legal scholar Cass Sunstein’s 2003 book, Why Societies Need Dissent. Tushnet states that his purpose is to “argue against one version of that thesis, contending that in general societies do not need dissent as such. Rather, the instrumental celebration of dissent is parasitic on dissent being correct” (p.192). Though noting that dissent can reveal information, Tushnet identifies several shortcomings of dissent overall. For instance, he asserts that there are many examples of non-valuable dissent. Further, he observes that persistent dissent can undermine political support and lead to skepticism about scientific expertise. Finally, he believes that a populace will not reward dissent that isn’t helpful. The commentary on Tushnet’s article is by Ronald J. Krotoszynski Jr., John S. Stone Chairholder of Law and Director of Faculty Research at the University of Alabama School of Law. He counters Tushnet’s premise by finding that American society protects “worthless dissenting speech not out of a mistaken belief that such speech possesses even a modicum of value but rather as a defense against an overbearing government that seeks to perpetuate itself and its incumbent officers through active censorship programs” (pp.218-219).
Reading this book called to mind other works in the field. Chapter 1 on counterfactuals covers a common topic in how-to law texts, but is rather unique in the manner it compares the tool to dissenting opinions by jurists. Chapter 2 presents an original categorization of dissenting opinions by U.S. Supreme Court justices. Both of these chapters deal with a topic analyzed by David M. O’Brien in his 2003 study. Chapter 3’s focus on dissent and the civil rights movement can be compared to the research undertaken by two authors. First, in his 1981 work, Steven Vago includes two chapters assessing law and social control or social change. Second, David S. Meyer’s 2007 book not only offers a history and contemporary evaluation of dissent generally, but likewise does so within the context of social movements. Of course, he furnishes a number of examples of protest and civil disobedience by those in the civil rights movement. A suitable comparison to Chapter 4’s examination of dissent’s prevalence and impact within the legal academy is Jerome H. Skolnick’s 1969 report on violent aspect of protests. Skolnick’s chapter probing judicial response to crisis ends with a series of recommendations including reorganization and greater sensitivity to litigants’ concerns. Finally, an appropriate match to Chapter 5’s question about the value of dissent in American society is Stephen L. Carter’s 1998 tome, as it contains a chapter on disobedience and how courts treat it.
Though the present text has many benefits, there are a few shortcomings. [*12] Editor Sarat provides an effective Introduction to the book, but there is no Conclusion found which could synthesize the information and provide a direction for future research. Additionally, transitions between chapters are non-existent, most likely a consequence of the book’s organization in which commentary follows the main chapter subject. Further, even as footnotes are the uniform citation method, the extent of citation by the respective contributors is certainly inconsistent. As far as content, there appears to be one deficiency of inclusion and one of exclusion. On the former, Richard H. Pildes relays the negative view that political scientist Louis Fisher has toward his profession’s pursuit of opportunities to influence legal policy. Though Fisher is a constitutional scholar of some note, his views are not representative of political science overall. On the latter, adding a dissent-oriented chapter which specifically analyzes how Congress and groups in American society actively seek to counter or oppose a certain Supreme Court ruling – such as with the Court’s 1989 flag desecration ruling in Texas v. Johnson – would enhance the text’s appeal, though it is recognized that the edited volume is limited to topics discussed at the symposia. Still, the book’s advantages outweigh its flaws and its message about dissent’s purpose in American law and society is timeless.
Benjamin, Walter. 1969. “Theses on the Philosophy of History,” in Illuminations edited by Hannah Arendt translated by Harry Zohn. New York: Shocken.
Carter, Stephen L. 1998. The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty. Cambridge: Harvard University Press.Forster, E.M. 1924. A Passage to India. San Diego: Harcourt.
Frost, Robert. 1969. The Poetry of Robert Frost, edited by Edward Lathem. New York: Holt, Rinehart and Winston.
Meyer, David S. 2007. The Politics of Protest: Social Movements in America. New York: Oxford University Press.
O’Brien, David M. 2003. Storm Center: The Supreme Court in American Politics. New York: W.W. Norton and Company.Skolnick, Jerome H. 1969. The Politics of Protest. New York: Ballantine Books.
Sunstein, Cass. 2003. Why Societies Need Dissent. Cambridge: Harvard University Press.Vago, Steven. 1981. Law and Society. Englewood Cliffs, NJ; Prentice-Hall, Inc.
Bowers v. Hardwick 478 U.S. 186, 1986
Lawrence v. Texas 539 U.S. 558, 2003
Romer v. Evans 517 U.S. 620, 1996
Texas v. Johnson 491 U.S. 397, 1989
Copyright 2013 by the author, Samuel B. Hoff.