Vol. 3, No. 7 (July, 1993)

FORESHADOWS OF THE LAW: SUPREME COURT DISSENTS AND CONSTITUTIONAL DEVELOPMENT by Donald E. Lively. Westport, Connecticut: Praeger, 1992. 168 pp. Paper $17.95.

Reviewed by Patricia R. Pauly, Department of Political Science, University of Kentucky.

As we teach our undergraduate constitutional law students, the written dissent is a powerful instrument. More than just an opposing vote, the written dissent explains why one or more members of the Court voted against the majority. This explanation can serve as an exercise in persuasion, as the dissenter, whose logic has not won the day, hopes to win tomorrow. Thus, we teach our students that dissents stem from different conceptions of judicial role and opposing political and philosophical viewpoints, they may advance alternative constitutional interpretations, and they may ultimately prove more compelling than the Court's opinion. And so we help students understand the impact of the "prophetic dissent" on later constitutional development.

Donald Lively's book begins from this straight forward, almost common sensical premise. As he writes, "Although at odds with dominant understanding of the Constitution when first articulated, dissents facilitate the law's development while providing a linkage that establishes a source of continuity. What appears to be settled principle, therefore, may preface but not necessarily predict future law. Not infrequently, dissents have been the foundation for future constitutional landmarks" (p. xi). His purpose "is to demonstrate the influence of dissenting opinions in the evolution of constitutional law" (pp. x- xi). After an initial discussion of the constitutional basis of slavery rights, Lively focuses on dissents in a handful of issue areas: slavery, federal/state relations, substantive due process, race relations, speech, and privacy. For most of these areas, he looks at the impact of one major dissent, and the dissents he concentrates on are those one might expect: DRED SCOTT V. SANDFORD, the SLAUGHTER-HOUSE cases, LOCHNER V. NEW YORK, the CIVIL RIGHTS cases, PLESSY V. FERGUSON, GITLOW V. NEW YORK and WHITNEY V. CALIFORNIA, and OLMSTEAD V. UNITED STATES.

The approach is qualitative and historical. Each chapter begins with a discussion of existing law and relevant social conditions prior to the major case. He then presents the Court's opinion and the dissent, discussing in some detail the logic that distinguishes the dissent from the majority holding. Where necessary Lively provides some biographical information concerning the major actors and briefly outlines the social and political conditions that gave rise to the case. He then traces the impact of the dissent on subsequent decisions by discussing later Courts' holdings and the relationship they bear to the earlier dissent.

The thread that binds the treatment of these issue areas, and keeps the book from reading like a collection of isolated case studies, is Lively's efforts to weave developments in diverse areas of the law. He leads, for example, from a discussion of Holmes' dissent in LOCHNER to a consideration of Black's dissent in GRISWOLD V. CONNECTICUT, linking substantive due process in economic rights with privacy rights (see chapter 4). The result is sometimes repetitious, but generally effective in following tangled family trees in which a decision may be the direct descendant of some prior decision in a seemingly unrelated area of law.

By and large the paths of influence Lively asserts are unsurprising. For example, Harlan's dissent in PLESSY foreshadows the series of cases leading to BROWN V. BOARD OF EDUCATION (chapter 5). To take another example, Holmes and Brandeis's dissents in GITLOW and WHITNEY presage the Court's later embrace of the clear and present danger test (chapter 6). Few, if any, of his claims are controversial.

While Lively's arguments concerning the impact of these major dissents on later constitutional development are on whole consistent with what one might expect, he demonstrates quite

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persuasively that competing conceptions of the judicial role are the motor force driving many of these controversies. This point is best made, perhaps, in the treatment of Black's and Douglas's exchange in GRISWOLD (pp.75-8).

Does Lively convincingly show the impact of these dissents? Although most scholars would probably agree in general with the lines of influence Lively traces, his arguments are weakened by the lack of citations in the work. There are simply no footnotes or sources cited in the text. Lively does provide a bibliography at the end of each chapter, but none of the arguments, claims, or statements in the text are supported by direct reference to any other work. The reader is left to wonder about the foundations of Lively's claims. In fact, page numbers for the quotes Lively uses are not provided, and some passages require the reader's close attention to divine the source of the quote. The lack of citations makes one wonder about the book's intended audience. Without citations the book is likely to leave academics dissatisfied, and yet there is far too much detail for undergraduate students or casual readers (not to suggest that they are one and the same).

Also troubling, the reader leaves the book with no sense of why these particular dissents proved to be prophetic. Granted ideas are ephemeral, but there is no discussion of what these landmark dissents share in common. Ultimately, we have no way to gauge whether a specific dissent will have a future impact.

In a related vein, the general argument -- that dissents can influence future constitutional development -- is weakened by the author's selection of cases. By confining his analysis to the expected, well-known cases, Lively in essence stacks the deck. The general argument would be more forcefully demonstrated if he considered the impact of lesser-known dissents.

In sum, Lively's premise is both reasonable and important. But the overarching problem is that Lively does not document an account that largely squares with conventional wisdom.