weekend on c-span three. dissenting at the supreme court is a lecture series hosted by the supreme court historical society. next on american history tv, university of arkansas law eck issor mark killenb introduced by supreme court justice stephen pryor, then discusses dissenting opinions written between 1810 and 1927. >> good evening, ladies and gentlemen. serve as president of the supreme court historical society. i am pleased to welcome you to the first lecture in this year's silverman series. this year, we are examining ,issents, not majority opinions different aspects thereof. you have already been warned about your cell phones and your iple watches and so forth, so

will not repeat that, but you will be in the doghouse if it goes off during the period of our evening. i also want to thank this evening our host, justice stephen breyer, who against all odds agreed to come and introduced our speaker this evening on the first day of a busy term. justice breyer is one of the most faithful friends of the society. whenever we have called on him to help us out, he has shown up and done a wonderful job. i want us to thank him for taking time away from his busy schedule on first day of term. i do not want to impose too much on justice breyer's time, so i will abbreviate the introduction of justice breyer. he was born in san francisco and received an ab from stanford, a ba from modlin college, oxford, and an llb from harvard.

he served as a law clerk to justice arthur goldberg of the supreme court of the united states during the october 1964 term. after, justice breyer pursued a career of teaching and public service. president jimmy carter appointed him to the court of appeals for the first circuit in 1980. in 1994, president clinton nominated justice breyer as an associate justice of the supreme court to succeed harry blackmun. he took his seat august 3, 1994. since joining the court, justice breyer has completed no less than a number of books including interpretingty: ,"r democratic constitution

"making our democracy work: a judge's view," and most recently "the court in the world, american law in the new global reality." with thanks and appreciation, i ask you to welcome justice stephen breyer. [applause] jus. breyer: thank you. thank you. very nice. and it is a silverman tradition to introduce the introducer. joan has done a fabulous job and i am glad you are all here. what you do -- i was just talking to -- my wife has written a book. she is a clinical psychologist and worked at dana-farber and wrote a book on what to do if your child is very sick and it is very helpful to a small group of people. she was talking about it at st. jude's in memphis. so i could not resist talking about one of my books. so not to st. jude's, but to law schools -- everybody in the room, and there were a lot of people, they agree the single most valuable thing is exactly what probably everyone in public

office and most who aren't, in washington and elsewhere, agree is the most important thing to do, to get the word out to the next generation that we do have a history, we are a democracy, we do have, in fact, a long history of ups and downs, but basically it is a society today that is democratic but has basic human rights protected -- not perfectly -- and is more and more a society that is diverse and treats everyone as part of this group. we are part of that. i mean, you are a part of a group of people really making an effort. the supreme court historical society does that, so of course i would come and introduce whoever is speaking, and they are always good. i always learn something. tonight we will learn about dissent. i don't always dissent. [laughter]

bryer: quite often i am in the majority. they often don't pick that up. sometimes i dissent but this is the first of the society's for -- four part 2019 leon silverman series, the subject is dissent and the supreme court in new perspectives. well, i mean, i have seen what you have done over long periods of time in this organization. keep doing it. just keep doing it. this is just one example. i mean, you have teacher training programs, you bring in high school civics teachers, publications, journal of the supreme court history. the title tonight is dissent. concurrence as a dissent, lecture to whitney. the speaker is eminently qualified. it is professor mark killenbeck, the distinct professor at the

university of arkansas school of law. he received his ba from boston education andgher phd from the university of nebraska and is a life member of the american law institute and wrote two related books, "mccullough v, maryland," and an older book from 2002. he is published widely on the supreme court, the constitution and spoke twice before this audience . so there is demand that he came back. and it is very good. it is a badge of honor that the society wants you to return. please join me in welcoming professor killenbeck. [applause] killenbeck: thank you for gracias and--

production, justice breyer, and acious introduction, for takingyer, and the time from a busy first monday. i didn't realize -- i want to thank the society for the invitation. i want to thank in particular jennifer lowe, the driving force behind these things. it is a great honor and a privilege to be here. the subject tonight is the oddity of opinions, the style of concurrence is that turn out to read much like dissents. be thets are going to main part of this, justice and -- justice johnson and his opinion in fletcher v. peck, justice brandeis and justice homes in 1927 in whitney, california, and they are the two most prominent examples of something i will call agreeably disagreeable. sort of the court etiquette version of judicial fighting

words said with a disarming smile. now, dissent is not something new to the court. very few people realize the very , very first reported opinion of the court by an obscure justice, thomas johnson, of whom it was said no one served with least distinction and least impact, first recorded written opinion of the court was a dissent which he got to deliver as the first opinion because they did each justice announced he was the junior justice and than got to sit and listen to every other member of the court tell him he was wrong. -- the nextt year, ,ear, in 1792, justice iredale in a more consequential dissent, one out of five saying in spite of the clear text of the constitution, you couldn't bring a suit against a private citizen of the state of georgia.

the case produced a the 11th amendment. we won't go any further. now, context is very important to what i am about to talk about tonight, and in particular, context under which john marshall became chief justice of the united states. the myth surrounding the chief jay saids that john his infamous letter to president adams after he had been nominated and confirmed within which he depicted the court as follows. i left the bench convinced under a system so defective the court would not obtain the energy, weight and dignity which are essential to affording it do support to the national government, nor require public confidence and respect which as a last resort of the justice of the nation it should possess. he declined. and this set in motion the last sequence of events in which john marshall was not the inevitable nominee. president adams was determined to elevate a sitting member. hisoped that cushing, who

first choice, would decline. he wanted to nominate patterson. he had his son working for four weeks in philadelphia to convince jared ingersoll to accept the seat that would be vacated if one of the sitting justices was elevated. so i have a habit of referring to john marshall as the accidental chief justice. that said, he took the judicial bit between his teeth and had two missions. the first of those was to gainsay john jay and get the court the position it deserved to have as a coequal branch of government. earned as everyone knows, he announced that with great resolve and affect in 1803 in marbury versus madison. the second was to ensure the court was treated with respect by encouraging it to speak with a single voice. shortly after mccullough was decided and he engaged in his

debate, marshall talked about dissent. the course of every tribunal must necessarily be the opinion which is to be delivered as the opinion of the court is previously submitted to the consideration of the judges. and if any part of the reasoning be disproved, it must be modified as to receive the approbation of all before it can be delivered of the opinion of all. and so marshall was dedicated to the idea of no more opinions, having the court speak with a single voice. into this peaceful little habitat came william johnson. jefferson's first appointment to the court. where one can only begin to speculate about how he was licking his chops at the opportunity to put someone on the court who was not a federalist. and in particular, who was not john marshall, his distant cousin who he, quite frankly, despised. was amity between the two

leitmotif from the 1790's on. indeed, in a strangely prophetic letter to james madison in 1790, he complained about marshall and said we need to find something better to do with him to get him out of the way. "nothing could be better done than to make him a judge." well, that which became true, much to jefferson's chagrin. the theory would be that william johnson would be an ardent supporter of the jeffersonian approach to things. one small problem -- they selected him on the recommendation of the secretary of the treasury, his name sent to the senate, confirmed, james madison sent him a letter saying congratulations, would you accept? a rather strange pattern in those days. no due diligence was overtaken and they were unaware of the fact that johnson, while on the south carolina court, authored

an opinion which if it had come to light have given at least distress if not downright apoplexy to thomas jefferson. why? because in that opinion he did two things that were anathema. he recognized the heresy of implied powers and he recognized the constitutionality of the bank of the united states. this is why i refer to the william johnson as -- i hate this term but people like to talk about stealth nominees. this was our first stealth nominee. now, gallatin and jefferson thought they had put the jeffersonian cat among the federalist canaries. they were going to be greatly disappointed. johnson carved out a record during his tenure on the court of support for virtually all of the main positions embraced by john marshall. this was not because john

marshall's legendary persuasive powers. it is because if you look with care at the record, the indication was already there. now, a couple of other important things. first, johnson joined the court after marbury. he was not part of that particular revolution. and between marbury in 1810, there really were few, if any cases that came to the court which would arouse jefferson's ire. the single most important exception where the case is coming out of the burr conspiracy, where johnson in fact did dissent, but not on a constitutional basis. 1810, fletcher vs. peck presented the first opportunity an johnson to speak out in area near and dear to jefferson's heart. compounded by another development. in 1808, sitting on the bench,

circuits, a treasure task that will not be brought trusts, johnson issued an opinion with regard to the embargo, where johnson took a position that countermannedded a direct jefferson.m this gave rise to an incredible dialogue. he delivered a little mini lecture, even presidents are subject to and should respond to the law. jefferson was outraged. he had his attorney general a letter to all port collectors in the country. views,as an exchange of all of which was published in the opinion that johnson issued. so when fletcher arrives at the 1810, he's not one of the in crowd. he is the enemy. problem.a that problem is threefold. he wants to be true to his own principles. wants to be true to the things that he had embraced as

marshallhe john project. but he also wants to appeal to patron, thomas jefferson. line? does he walk that fletcher vs. peck is renowned for three things. first, the notion that a state can set up something that is a contract, subject to the contract clause. even though it is not a private agreement, the traditional ofmon law understanding contract. second, fletcher is the first time the supreme court declared a state law unconstitutional. third, the johnson concur. the first two are simply wrong. one of the very first opinions that johnson participated in was a case where anticipating fletcher, john marshall held a state statue could in fact create a contract and could to contractubject clause interpretation.

one year before fletcher, united states vs. peters, john marshall again, a state law is unconstitutional. the first two myths about fletcher, been there, done that. they're simply not true. is true is that johnson wrote an opinion within which he wholeheartedly agree with the court. this measure is unconstitutional. the parameters of fletcher, i won't go into detail. vaguely familiar to both of us. it's in every common law case albeit only brief mention. agree that this measure is unconstitutional. georgia legislature had done all sorts of hideous things, the fraud. they passed a measure in 1807, the next year after the public about it, they repealed it.

controversy that consumed the nation. so when it arrives at the court, a cause celeb. and johnson wants to walk this line, so he issues an opinion where he says, i agree, unconstitutional. because itr, violates the contract clause. rather because it violates he said bindshich even the deity. bit.of that in just a now, why did he do this? theink it's because of context that i've established. 1810, trying to bring together competing strands. johnson, for example, had been a willing participant in a series to mccullochprior where the supreme court recognized implied powers. carved out a position with regard to the powers that

expressly granted, that was in some instances even more of johnhan that marshall. fletcher gives him the to simultaneously agree and disagree with john marshall. to hinge that agreement on natural law, which was one of thomas jefferson's favorite things. indeed, some scholars have even few members of the supreme court have ever done as much for law as a principle. few individuals in the united states, excuse me, not members court, as thomas jefferson. what does johnson do? naturalhis opinion on law, not on what thomas as ja johnondemned marshall's habit of twistifications and distortions of the constitution. us an, johnson did give extended explanation that i terriblyprobably not

credible. he wanted to talk about the difference between the obligation of contract and the regulation of contract. problems with that theory on the part of johnson. i think it's, quite frankly, makeplace quibble. first, in nature, marshall mayessly said, states regulate. two years later, in a companion more he said it elaborately. then in 1827, in his only dissent, marshall at length talked about no normalstency between the regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a contractual agreement. so i think johnson's superficial explanation is a placeholder. the true explanation to me is his attempt to try and walk this fine line, to find a way to be principles, which

were a blend of robust marshal nationalism and a certain respect for state rights. but to do it in the light of all so inof opinions, gibbons, johnson concurs yet an opinion within which he does a couple of interesting thing. say, excuse me. i think one of the reasons why we have a commerce clause is were such badates actors. so he says, the states caused problem. that's jeffersonian heresy. he then goes on, in that same opinion, to say i think the federal power over commerce is issued a duct that was ultimately resolved against ahnson many years later in decision. so johnson is walking a very fine line. keep us fromto having this heresy of

obstruction,l relying on natural law, which if natural law binds the deity, perhaps it might even bind john marshall. a mere mortal. this brings us to whitney. whitney is another one of those constitutionalhe curriculum. and it's -- the facts are well-known. charlotte anita whitney was a a very c california family. she was referred to as a woman of sophistication and intelligence, which is going to come back to haunt her. she got a college degree. she did social work in new york city. large amount of charitable work in california and became very sensitive to the the working person, to the problems caused by poverty the progressive era, an era where respect for individual

rights was just barely beginning to emerge. so what does she do? thebecomes a member of communist labor party of california. she attends a meeting of that of 1919.november she signs a resolution saying, we're committed to peaceful change. but none of that mattered. court ofhe supreme california had already decided coming.know it's communism is truly and totally evil. theed, the link between communist labor party of california and the industrial theers of the world, one of most despised groups by the establishment in the teens and helped doom charlotte whitney. case eventually comes to the court in 1927. the court issues an opinion where they very quickly come to the conclusion, she's guilty. participated in this meeting. this group is, in effect, evil.

this group is plotting against all that america stands for. brandiceave justice joined by justice holmes, issuing a concurrence. and people have speculated about that ever since. explanation is tied up to an aspect of justice brandice worth noting. he said there were procedural defects in the record below. the attorney representing charlotte whitney did not in amendmenta first issue of what was going on, did appropriatee the evidence. and he says, this is a very fact-bound inquiry and on the record below, there was evidence that was given to the judge and the jury that could support the conviction. and on that basis, we cannot overturn this verdict.

an opinion,this in and it is famous, that reads on why free speech is important, why the first inndment is a centerpiece american democracy. anddom to think as you will to speak as you think are means in -- needse indispensable in value. without free speech and beembly, discussion would futile. with them, discussion affords theuate protection against dissemination of noxious doctrine. menace to freedom is an inert people. public discussion is a political should be at fundamental principle of the american government. then in the lines that everybody remembers, fear of serious injury cannot alone justify speech and of free assembly. men feared wishes and burnt women. the function of speech to ofe men from the bondage

irrational fears. the fact that the legislature that these kinds of parties were anathema was irrelevant. we will not defer to these kinds judgments.ive we need to take the test and refine it. now, what was that test? holmes, in thee shank case, articulated what we and presentclear danger test. an inquiry that focuses on whether certain words are uttered in such circumstances as andring about a clear present danger that they will cause the substantive evil that right tot has the prevent. he amplified that in a couple of companion cases. arguably was the standard that was in place. a wellan yodice had

developed reputation as a prerogative, as one who supported innovation, as someone who believed in fostering the rights of individuals. brandice also had a well-deserved reputation as in judicialbelieved caution. so, for example, in his dissent in ashwander, he lists six takers the court should into account when it hears constitutional cases, and in account, should refuse the hear the case. three are directly on point with whitney. counseling that you shouldn't court the way that the did in fact not act, making his concurrence look like it is totally consistent with, a, his philosophy of judicial the rules thatb, he would respect, even in the of his ice vs. leadman, the

laboratories of democracy case, et cetera. now, a little known fact about whitney, it was actually -- in he actuallynce -- prepared what amounted to the issuanceoncurrence for in a prior case, ruthburg vs. michigan. ruthburg did the same thing that charlotte whitney did. he joined the communist party, a meeting, had the misfortune to do it in michigan when they were even less time of at that communism than the good people of california. he had a second misfortune. his case wase resolved. oral argument was held. brandice prepared his dissent for that case. two-pagerepared a concurrence for whitney, saying, for the reasons i announced in in ruth -- dissent in i supportdecided to, the first amendment and free speech. when ruthburg died, that one, poof, can't do that anymore.

this traditional explanation plausible, but it also strikes me as potentially very misleading and very incomplete. for a couple of very important reasons. is it does not do justice -- i use the word with a of caution -- to what the supreme court did between 1919 and 1927 with the clear and present danger test. particular, in getlo, a case itsded in 1925, famous for very casual, not labored, two-sentence incorporation of guarantee,eech unlike cases that would follow page page upon page upon is consumed in an attempt to justify incorporation. new york statute is subject to the free speech prescription. but the court also did something much like toto, pulling aside

of oz.tain on the wizard it revealed what it was really thinking. thember when i told you clear and present danger, certain words in such circumstances? court made it absolutely clear what it meant by certain words. point-blank said there are certain things which by their very nature, when they are discussed, pose a risk that society cannot tolerate. words, it's the doctrine. the statement, not the usage. we don't care that poor and puny anonymities -- they were putting court would routinely call in the 20's propaganda. those of us who are familiar ath the red scare know what value-laden term the word progrespropaganda is.

twisted, dishonest, un-american. you you shouldn't be eating apple pie or wrapping yourself in the american flag, because of course good americans would never do that. he reveals what's really going on. indeed, many years later, in redis, the infamous 1950's scare case, the court made that absolutely clear when it said clear andnquiry under present danger is the gravity of by itsl discounted improbability. which means if you think so evil, you don't care that it's never going to happen. you're going to go after it. and it wasn't until 1969, in if brandenburg, that the supreme court cleared this defect and brought the test for the prostitution of speech, back to where holmes and abrams and

brandicey holmes and and whitney wanted to take it, ie, you go after the speech if and only if you are actually imminent lawless activity and it is likely under circumstances that that unlawful activity will occur. the breakthrough. that's been the doctrine ever since. whitlow,never mentions this crucial gloss on clear and present danger in his whitney opinion. writes it in ways that say, we have a rebuttable presumption but he also writes it in ways that says, the question is whether or not the judgment, occur is might reasonable. now, whitney does refer to fro speech as a fundamental -- free speech as a fundamental right. but what we have to remember, read that passage in whitney, with the blessings of

in 1927, thatthat didn't mean very much. if you look at the cases meyer they talk about reasonableness, about deference. until footnote four of caroline products that we begin to give fundamental rights robust pro teks. so the whitney -- protection. the whitney concurrence still says reasonable problem. it's one thing for the supreme court to write a rule. it's another thing to be able to trust the judicial machine to thatment it in the ways you want. juries become a cause for concern. remarkable exchange handtters between learned judgeiver wendell homes, hand points out the problem with juries and their herd mentality

deeplyir ability to be influenced by the ebb and flow of current events. there's a respectable was awarehat brandice of this problem and was next,ant to take that necessary step, especially in a with procedural difficulties. concurrence,ney tucknet has described it as the model of what a dissent can be. think it was a concurrence, first reason for all sorts of very important beyond the one that brandice proffered. reason, context is extraordinarily important in this area. about thel myth 1920's is that, as we got deeper deeper into the roaring 20's, concerns about communism,

and world war i were receding. over.ssian revolution was the execution of the czar was a memory. prosperity was rampant. beinger goods were introduced that many people were able to access. ford had, for better or worse, started the revolution in transportation that led to the transformation of this nation. that superficial veneer belied a continuing antipathy that was regard towith communism, the communist party p thosezed labor and all other evils. wigmor wrote an article where he said, in

promoted theare thuggery. totally sobering article, published in the illinois law review. it's a catalog of all thuggery. totally the evils that five men publishing a publication in individualish virtually no circulation. no one ever read. were going to bring down the war effort of the united states. >> we tend to forget, another reality of that period, the conservatism. early in the new deal, john w. attorney, infamous in some respects, official spokesman for the american bar association, writes an article where he says the federal not an elmossinary institution. all this new deal stuff? oughtwhat the government

to be doing. january 22, 1926, new york times. communists were boring into, worms or something, negro labor, directed by the communist international in moscow, as part of its worldwide propaganda. 1926.r 22, banner headline, san francisco examiner. caught,rror thug infesses, beaten with hammer strike riots. whitney, before new york times, the american legion had issued a report radicalization in the public schools, quote, submitting that it is entirely for discussions tending to create disregard for the united states government to in an educational institution supported by taxes, is that true and there is so great a presumption that the organization concerned identified with a parent

body. think moscow. aims and objects are undermining our form of government. another opinion, president of quote,il legion, saying, college-trained men and women -- watch out for college-trained women -- are the most dangerous element in the and communistment doctrines are now preached by renegade americans instead of by foreigners who formally adopted them. even american labor unions themselves, not terribly popular, felt compelled to do everything they could to themselves from the red peril. now brandice and holmes were surely aware of this. were surely aware of the fixationed by a public that continued to typify these totally movements as anathema to the american way of life. the judge hand quote i

referred to earlier, all i say cases actually occur when men are excited, and especiallys are clanish, it is very questionable whether the test of motive, ie, your motive, is not a dangerous test. juries won't much regard the between the probable result of the words and the purposes of the utterer. case, unless one is rather set in conformity, it intimidate, to throw a scare into many a man might moderate the storms of popular feeling. i know it did in 1918. context iss important in terms of understanding much of the saying, that goes into concur, not dissent. court did make some progress in 1937 in de jong. it effectively overturned the notion that simply being a member of a party was enough to a conviction.

of course, in 1937, the raf great -- ravages of the great depression were fading. roosevelt was promulgating likeies that made it look the south korea soviet union wa. day of pearl theor, the bridges case, court did what holmes wanted to and what brandice talked about in whitney. it said the clear and present danger must be objectively clear and really present. but, of course, in december of 1941, what was russia? to become our trusted ally in the great crusade against nazi germany. the we go to the 1950's, red scare and dennis. context becomes extraordinarily of shapingn terms

these kinds of decisions. so what can we say about concurring opinions? are other examples. fletcher and whitney are simply the most fun. of thinking,my way stellar examples of judicial bringmanship, efforts to together competing strands of law and fact and weave an balanceson that divergent needs and interest. for johnson, the goal was to multipledemands of masters, even as he remained true to his principles. brandice saw to give effect to the abiding need for judicial within which free speech would enjoy the protections required in a society that values both the for truth and the need for public and social order. the lines were drawn with care. remind me of a 19th century work gentleman named thomas fuller, discussing witches. at first withns doing tricks rather strange than hurtful.

yay, some of them are pretty and pleasing. but it is dangerous to gather the banksat grow on of the pit of hell, for fear of falling in. they which play with the devil's rattles will be brought wield his sword. from making of sport they come to doing of mischief. johnson and brandice skirted pits of might call the hell. they crafted things that looked a little strange but also had a beauty. they did what, i think, is in the best tradition of the court. a way to give meaning to the notion that while we are technically a court of law, what is aally are working for court of justice. thank you. [applause]

>> this is american history tv 3, where each weekend we feature 48 hours of programs our nation's past. >> book tv has live, weekend coverage of the miami book fair, starting saturday, november 23, and sunday, november 24, featuring author discussions and interactive viewer call-in segments. saturday, november 23, at 11 a.m. eastern, republican senator about arlington

national cemetery. former obama administration andonal security advisor u.n. ambassador susan rice her life and career. on the westborough baptist church. on liberalism and andy greenberg discusses russian 24,ers on sunday, november at 10:30 a.m. eastern. our live coverage continues with undersecretary of state in the obama administration, on proliferation of disinformation and international politics. david mayernis on the 1950's, scare. former deputy director of the c.i.a.'s counterterrorism center, phillip mudd, talks about the state of c.i.a. detention centers. and former professional football player don mcpherson on toxic masculinity. miamilive coverage of the

book fair november 23 and 2's book24, on c-span tv. + next, pulitzer prize-winning photographer talks with a 15torian about his more than year long photography career. time ase topics, his president gerald ford's chief photographer. the center for creative photography at the university of arizona and bank of america hosted this event. >> thank you all for coming here. it is a thrill to see you here. said, i am thrilled to be leading arizona arts.