Articles that were of no use to me. A lot of them were long reviews that would take a particular dissent and parse it which is something that i did as a law school student, had no desire to do again. Been there were a lot of Political Science articles that were worse than useless because unfortunately Political Science these days is more interested in counting them in analyzing. You would get articles like why are more dissent written on tuesday that on thursday . What i wanted to explore was what role does the dissent itself play, other than for the person who wrote it said i dont agree with you . The answer i came up with, which is sort of buried in the subtitle of the book, is the notion of a constitutional dialogue. Most dissents are justly forgotten as soon as theyre written, as our im afraid to say majority of all cases. Some of them ring on. You have to deal with them. Not just the judges sitting out but the future. A good example of this is hugo blacks dissent in brady where he first raises the question whether the six amendment should apply to the states. His argument is that you cannot have a fair criminal trial unless the defendant has an attorney there. The majority of the court disagrees, and over the next 20 years, lacks dissent was like bankos ghost. Every time a case came up involving a lack of a lawyer, there is hugo black who is saying youve got to have one, youve got to have one. Until gradually the court is one over and in gideon v. Wainwright i think that chief Justice Warren did a wonderful thing. He signed the case to block who never thought as he put it that he would love to see it overturned. But that is the type of dissent that gets into this dialogue. Every succeeding sixth amendment case. There is black dissenting,come and they go to this thing about special circumstances to avoid brady until finally it is one over. That was what i was looking for, how do the sensible in the constitutional dialogue. And its a dialogue among the justices, and with gator bend berg tells a wonderful story about how it started out as dissent, Ruth Bader Ginsburg does a wonderful feeling, a dissent with congress, you cant do this way. Might be able to do it that way. And its also a dialogue with the american people. In the federalist, hamilton calls the court the least Dangerous Branch because they have neither the power of the purse nor of the sword. So then how come we listen to the court . How come the american people, for the most part, after a case like brown, lets say, how come the south didnt just rise up and revolt . Part of a day. But for the most part the courts of prestige depends on its ability to communicate with the american people. This is becoming i think more obvious now because more and more of the justices are going out and giving talks, writing books. But brandeis clerks all tell the same story whatever he wrote a dissent, there would come a point where he would turn to the clerk and say, i think we have now made our case. How do we make it more informative . In other words, how do we make it more teachable, more open so that people understand whats going on. Which is too long an answer to question. Not at all. The idea of the constitution as a conversation among people of fundamentally differing points of view is central to the abolition of constitutional dialogue, central to what were trying to do here at the National Constitution center by bringing together people at different points of view and thats what this book is a significant. Lets start from the beginning and move a. I want to talk about her antis. Lets begin with John Marshall. John marshall comes to the court, and in people institution, the first appointees as chief resigned, keep turning down the office, and he conceives a bit of a single core by persuading his colleagues to converge around narrow unanimous opinions. He rejects the british tradition where every justices as this is what i think and this is what i think. And instead he gets the court to speak as a court. This drives his arch rival Thomas Jefferson crazy. His distant cousin who thinks marshall is letting people and i think we hide behind the cloak of unanimity. Tell us about marshalls vision and how he was able to pull it off. I dont know how many of you have ever read a series out of the case. I always assign one in my class early on and then asked the students to me what was said. Its very confusing dignity of lets say even seven opinions than you count four of them say this but they dont all say the same way. So we think that this guy one but we are not sure. So that in terms of the common law tradition where you can use a case for precedent, this case will affect others similar situated, syria doesnt help a lot. Actually i was Oliver Ellsworth who was the predecessor to John Marshall who first start drawing to get support to deliver an opinion of the court. He is only partially successful. Marshall believes in it the same way chief Justice Mansfield believe in england. Thats what got the idea from. The court should speak in one voice. This was marshall do, not so much they could be squashed. There were not that important decisions at this time. He was able to convince his colleagues that they would be better. Now, he wrote or delivered almost all these. Not only did he get them to believe in the opinion of the court but for the most part they wanted him to deliver the opinion, whether he wrote it or not. This drove Thomas Jefferson crazy, partly because the judiciary was the last part of government to remain in federalist hands after 1800. Jefferson was worried, with no real good reason, that the court would undo everything that he and the jeffersonian republicans were trying to do, which didnt happen. But marshall set the stage for this. It did work. The court by the time marshall leaves in the 1830s is a much more powerful instrument. It has handed down at least a dozen classic decisions that affected, have affected the country ever since. And set the stage. Part of what i do in the book, theres a chapter called the return of seriatim and thats as we get since the 1940s we have almost gone back to that and almost every term theres a least one case at a seven, eight, or even nine opinions attached to it. Let me ask you about why marshalls vision succeeded in his time and why it later failed. You to give the statistics during marshalls tenure as chief of 18011835, more than 1000 cases, only 87 had dissenting or occurring opinion. 7 , the lowest in the courts history. By contrast after the judges bill of 1925 under the chief justice you say that the number of unanimous opinions before the act was 91 . After the actor was 85 . Why did the judges decrease the number . More broadly let me phrase the question struggling in broad because it so important. Once chief Justice Roberts took office he told a bunch of interviewers and to give speeches, and i had the honor of an interview with him for a book with the thrilling title the Supreme Court, one of those creative book titles ever imagined. It was a companion book to a series and hes a pbs fence would talk to me for this book and he said he is going to make marshall this model and try to encourage unanimous decisions. If you were advising chief Justice Roberts wanted t the change between marshalls time and this time that made it harder to achieve unanimous opinions . We will start with the judges of bill which William Howard taft got through congress. In the early 19 join Louis Brandeis tells Felix Frankfurter that most of the cases we get its more important they be decided than they be decided right. When i was doing the research on it, congress had given the right of appeal to all sorts of things to go up to the Supreme Court. I went through two years of Supreme Court reports in the early 1920s. There were local bankruptcy cases. They were bankers leaned. They were court cases. It would dispute. I bought a horse. He delivered annual type of thing. The sort of stuff that would now be decided in either a Magistrates Court or shortly no higher than a local state court, but because of the way congress had framed the courts jurisdiction, you know that all think i will fight it up to the Supreme Court . Before 1925 you could. What tasks vision was that the Supreme Court become primary a Constitutional Court and that it had only three jurisdictions, one is the original jurisdiction assigned to by the constitution, dispute between states and those involving ambassadors. Secondly, constitutional questions involving whether or not a particular act or something violated a clause in the constitution. And third, statutory interpretation of the congressional acts. Once you limit it to those, now it was important not only to decide but to decide rightly. Which means that people who have strong constitutional views of brandeis, Nick Reynolds is another story but a sutherland, they are looking to be consistent from one constitutional case to another. And if you on the short side of the vote come you dont want to associated. It used to be people who disagreed would just note the disagreement, not even filed a dissent. Now now you started filing dissents. But brandeis was very cherrypick heald had one clerk so for him to write a dissent involve an enormous use of resources of time and his clerk. Justices now have four clerks. So its easy for someone like scalia to say okay, clerk number one can you do the research on this. Clip number two, you did on this. A do the research and they can have about 40 cents where it wouldve been impossible. I told jeff before it fired Research Assistants who did all the work for i could write a book every three months. As opposed to every four months. [laughter] another thing that happened is the arrival of the prima donnas. This happen with the roosevelt appointees, Felix Frankfurter, hugo black, william o. Douglas and robert h. Jackson. A nastier group of people you could hardly imagine. Told the frankfurter stored what he said on the train home when the chief justice dropped dead in the middle of the deliver should of brown v. Board of education. Frankford said this is the first indication i ever had that is a god. Frankford was a nasty person in many ways, unless you agreed with him. At conference he would talk for 15 minutes. Why . That was the length of a lecture at the harvard law school. He made the assumption that his colleagues to know anything so he had to teach them. Douglas would go to the couch and read his mail. Douglas would give it every time. Sometimes when it was a bad argument before the Court Douglas wood passed out announcing the list, i understand he was one of her students at harvard. After frankfurter finished one of his lectures, douglas would say i came in your ready to vote with felix let you talk me out of it. Little things like that. Wonton frankfurter told rutledge was the most mildmannered and sweet person could you should do what i tell my students. When we are doing statutory interpretation you should read the statute three times before you make any judgment. Needless to say, this did not win him many friends on the court. When they refused to follow his lead he just became more and more embittered. He wrote more dissenting opinions that majority opinions, even if he agreed with the results of the thing, he always thought whoever wrote it got robbed so he would write a concurring opinion saying i agree with result but this is how they should have done it. Ive had some book reviewers who have done that. Contrast frankford argues it is remarkable for its lack of influence he wrote all these dissents and yet they are never cited today with the first great dissenter John Marshall harlan who exhorted a kind of prophetic force. You talk about prophetic defense where harlans dissent in plessy v. Ferguson, the only person to condemn unconstitutionality to strike in the Civil Rights Act of 1875, dissenting in First Amendment cases sets forth a vision the court nearly a century later will embrace and Thurgood Marshall raids the dissent in plessy for inspiration before he argues brown. What is the difference between the ineffective dissent of the frankfurter . I think my friend mark gave me a very interesting clue. He said you cant tell the great dissent until history has made its judgment. So in other words, we may be getting some great dissents from the Roberts Court but we dont know it yet because we dont know what influence its going to have. Brandeis opinion in whitney takes 40 years before the Court Catches up and adopts the free speech case until the Court Catches up to his opinion in olmstead ways sets forth the right to privacy and a new the of the Fourth Amendment takes almost 40 years for the court to catch up without. Harlan was dismissed as a prank. In fact, just before brown is written there is an article in the log review remembering justice harlan, in which there was a this amazing fact that there wasnt a single constitutional law textbook been in use in the United States that included harlans dissent in either the civil rights cases or plessy v. Ferguson. Its practically forgotten except by the naacp and some others. The interesting thing we all know our family with the phrase that the constitution does not recognize any class, color or things like that, which was a key phrase that was used during the civil rights cases in the 50s and 60s, and now has been revived by the robert Court Majority in the opinions that have struck down efforts in louisville and seattle to avoid resegregation of classes. Roberts believes the only way to stop, no, action based on race is to stop talking about it. It doesnt work. I dont know how the fisher case which is argued last week is going to turn out. Thats the latest of the affirmative action cases but if it goes against affirmative action, look for what Sonia Sotomayor is going to write. Part of being a great dissenter has to be involving on the right side of history. Which you cant always know that at the time they are writing. Now i cant resist the that jump in to brandeis. Our he wrote wrote the two greatest opinions about privacy and free speech in the 20th century. And by the way, so june 1 as a 100th anniversary of his confirmation. We will have a blockbuster celebration here. My book will be out. We are really going to dig into that so this is just a teaser for things to come in june a lets begin with whitney. Its considered a dissent even though it was technically a concurrence. Im just going to read a few of his beautiful words because they are so inspiring. Those who want our independence believed that the file into the state was to make men free to develop their faculties and that in its government to deliver to the forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. And that you say was almost a direct quotation from eric lees funeral oration as translated by alfred december in a book that brandeis valued more than any, the great commonwealth. Why is the way the decision by many accounts the greatest statement of free speech ever . What made it so prescient at the time speak with give me a moment to go back in history. All of you know that modern free speech jurisprudence will be begins with homes dissent of abrams, in which he uses the market of it is analogy. But theres a problem with it. Its a wonderful phrase for a philosopher which holmes all we saw himself as. Its not a very good guide to lower remember the Supreme Court one of its functions is to provide guidance to Lower Court Judges when cases come up. What brandeis does in whitney is he shows why the First Amendment is important to a democracy. Not to a philosopher but to a democracy. He always said that the highest office that anyone could hold in a democracy was that of citizen. But being a citizen meant you had responsibilities. You were supposed to take part in the dialogue over public policy. You do this a number of ways. Either candidate you vote for, i going to town hall meetings, writing letters to the editor. All these sort of things which are fairly common. But if youre going to make an intelligent decision about public policy, then you have to hear all the points of view. Thats what he is saying in whitney. We cant shut people up. They have to hear, the citizen has to hear not only what he already agrees with, but opposite points of view so that you can then make an informed decision. Holmes later on after this case will, as you recall, make a memorable statement that the First Amendment does not for speech we agree with buffer speech we hate. Rand isolate is leading into this. You have to be able to know all the different views, and his view was that the citizenry is smart enough to dump the wrong views, the erratic views, ones that are undemocratic. We could then go into a rep on the current republican nominee but we are not going to go that way. [laughter] nonpartisan basis, right. Lets stick to brandeis. As you describe it i can do that on a nonpartisan basis. Brandeis is making the argument about the importance of free speech on a nonperson basis because hes talking about the value of dissent. You saying that the citizens have access to the best arguments on both sides, they can educate themselves and make t