Q: Why did you decide to write about Supreme Court dissents, and what do you see as some of the most important ones?--Marshal Zeringue
A: The book in some ways grew out of the Brandeis biography. Brandeis wrote very important dissents in the 1920s. After that book was finished, the editor at Pantheon, Victoria Wilson, wanted another book.
My wife suggested I write about dissent…the question was how to do it. I did not want the book to be a law school textbook. I did not want the book to be a book only lawyers and scholars would read…
I try to give an overview of how dissent can play an important role, and it’s interspersed with entr’actes, a look at specific dissents—Brandeis in Olmstead, Hugo Black in Betts v. Brady. I show how important some dissents can be, and how [they can eventually become] the law of the land.
Q: In the book, you write, “All of the justices agree that dissents, if well reasoned, almost invariably make the majority opinion stronger.” What are some recent examples?
A: There’s a dialogue here. A really good example is told by Justice Ginsburg about writing the majority opinion in the VMI case. She says her majority opinion went through several drafts, and each was made stronger by the fact that she knew what Justice Scalia was going to...[read on]