announcer: "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 killenbeck is introduced by justice stephen breyer, then discusses the dissenting opinions delivered in cases between 1810 and 1927. >> good evening. i am from atlanta. i currently 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 dissents, not majority opinions, different aspects thereof. you have been warned about your

cell phones and apple watches and so forth so i will not appear that, but you will be in the doghouse if it goes off during the period of our evening. i also want to thank our host, justice stephen breyer, who , against all odds, agreed to come and introduce 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 don't 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

college oxford, and 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 a public service. president jimmy carter appointed him to the court of appeals 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 "interpretingy," constitution,"

"aking our democracy work," ," and mostw and the world:court american law in the global reality." with thanks and appreciation, i ask you to welcome justice stephen breyer. [applause] justice breyer: thank you. very nice. it is a tradition to introduce the introducer. [laughter] joan has done a fabulous job and i am glad you are all here. what you do -- i was just talking -- 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 helpful to a small group of people. she was talking about it at st. jude's in memphis. i could not resist talking about one of my books. everybody in the room, and there were a lot of people, they agreed the single most valuable thing is exactly what probably everybody in public office and most who aren't, in washington and agree -- and elsewhere agree is the most important to do, to get the word out to the next generation we have a history, we are a democracy, we have in fact a long history of up and down , but basically it is a society today that is democratic, 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. you are part of the 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. they always are. i always learn something. tonight we will learn about dissent. i don't always dissent. [laughter]

quite often i am in the majority. [laughter] sometimes i dissent. but this is the first of the part leonfour silverman lecture series, and the subject is dissent and the supreme court in new perspectives. 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. you have teacher training programs, 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. a distinguished professor

at the university of arkansas school of law. he received his ba from boston college, his jd and phd in higher education administration from the university of nebraska. he is a life member of the american law institute and wrote "mccullough v. and "the 10th amendment and sovereignty." he is published widely on the supreme court, constitution and spoken twice before this audience. so there is demand that he came back. it is very good. a badge of honor that the society wants you to return. please join me in welcoming the professor killenbeck. [applause] dr. killenbeck: thank you for that gracious

justicetion, just a breyer, and for taking the time from a busy first monday. i didn't realize until you were downstairs, on october 7, 1935, 84 years ago, the first monday of the first term the court spent in this building -- there is a certain degree of residence and it is humbling to be here. i want to thank the society for the invitation and in particular jennifer lowell, the driving force behind these things. it is a great honor and privileged to be here. the subject tonight is the oddity of opinions styled as s that actually turn out to read much like dissents. two prominent examples will be the main discussion, justice brandeis and homes in 1927 in california. wo of the most

prominent examples of something i will call being agreeably disagreeable. 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 first reported opinion of the court, by an obscure justice, thomas johnson, of whom it was said that no one served with least distinction and least impact -- the 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 and he was the junior justice. he got to sit and listen to every other member tell him he was wrong. the next year, 1792, 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 the state of georgia.

the case produced the 11th amendment. we won't go any further with that particular one. context is very important to what i am about to talk about tonight. in particular, context under which john marshall became chief justice of the united states. the myth surrounding the chief justice is that john jay sent 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 ue support to the national government, nor require public confidence and respect which as a last resort of justice to the nation it should possess." he declined. this set in motion a complex sequence of events in which john marshall was not the inevitable nominee. president adams was determined to elevate a sitting member of the court.

he hoped cushing, who would be his first choice, would decline. he had his son working 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. [laughter] that said, he took the judicial bit between his teeth and had two missions. the first was to gainsay john jay and give the court the position it deserved to have as a coequal branch of government. as everyone knows, he announced that with great results 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 in 1819 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. if any part of the reasoning be disproved, it must be modified as to receive the approbation of all before it can be delivered as the opinion of all." marshall was dedicated to the idea of no more surrey adam opinions and having the court speak with a single voice. into this peaceful habitat came william johnson. jefferson's first appointment to the court and 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

he, frankly, despised. the enmity between the two was a leitmotif from the 1790's on. 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 then to make him a judge." that was, 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 treasury, name sent to the senate, confirmed, james madison sent him a letter saying congratulations, would you accept? a strange pattern in those days. no due diligence was undertaken, 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, would have given at least gastric distress if not apoplexy to thomas jefferson. why? in that opinion, he did two things that were anathema. he recognized the heresy, as it was put, of implied powers, and he recognized the constitutionality of the bank of the united states. this is why i refer to william johnson as -- i hate this term because i do not think there is truth to it? -- but people like to talk about stealth nominees. this was our first stealth nominee. 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 was because, if you look with care at johnson's record, the indication was already there. a couple of other important things. first, johnson joined the court after marbury. he was not part of that particular revolution. between marbury and 1810, there cases were few, if any that came to the court which , would arouse jefferson's ire. probably the single most important exception were the cases out of the burr conspiracy, where johnson in fact did dissent but not on a constitutional basis. 1810, fletcher v. peck give the first opportunity for jefferson to speak out. this was compounded by another

development. johnson issued an opinion in regards to the jeffersonian embargo where johnson took the position that countermanded a direct command from jefferson. this gave rise to an incredible dialogue. he delivered a mini lecture. to. president's are subject jefferson was outraged. he had his attorney general right a letter to all court collectors. it was much like the post mccullough exchange which was published in the opinion johnson issued. when fletcher arrives at the court in 1810 he is not one of the in crowd, he is the enemy. he has got a problem. that problem is threefold. he wants to be true to his own principles, he wants to be true

to the things he embraced as part of the john marshall project, but he also wants to appeal to his patron -- thomas jefferson. how does he walk that line? fletcher v peck is renowned for three things. first, the notion a state statute can set up something that is contract, subject to the contract clause, even though it is not a private agreement. timed, fletcher's first declared the state law unconstitutional. third, the johnson concur. the first two are simply wrong. one of the first opinions johnson participated in was a case where anticipating fletcher, john marshall held a state statute could in fact create a contract and could in fact be subject to contract

clause interpretation. one year before fletcher, united states versus peters, john marshall again. a state law is unconstitutional. the first two myths about fletcher, been there, done that, they are not true. what is true is that johnson wrote an opinion in which he said, i wholeheartedly agree with the court. this measure is unconstitutional. the parameters of i will not go into detail. they would be familiar to most of us. fletcher is a warhorse. it is in every pace book, if only briefly mentioned. johnson said, i agree this measure is unconstitutional. the georgia legislature had done all sorts of hideous things. in 1807sed a measure and the next year, after the public found out, they repealed

it. it was a vast controversy that consumed the nation. when it arrives at the court johnson wants to walk this very fine line. he issues an opinion where he says, i agree, unconstitutional. not because it violates the contracts clause, but rather because it violates natural law which he said binds even the deity. more of that in a bit. now, why did he do this? i think it is because of the context i have established. trying tohnson, 1810, bring together competing strands. johnson, for example, had been a willing participant in decisions prior to mccullough with the supreme court recognized implied powers. positionarved out a

with regard to the powers that were expressly granted that was, in some instances, more robust than that of john marshall. fletcher gives him the opportunity to simultaneously agree and disagree with john marshall and to hinge the agreement on natural law, which was one of thomas jefferson's favorite things. some scholars have said few members of the supreme court have ever done as much for natural law is a principal. few individuals -- not members of the court -- is thomas jefferson. what does johnson do? he pins his opinion on natural law, not what jefferson condemned as john marshall's habit of distortion of the constitution. johnson did give us an extended

explanation that i think is probably not terribly credible. he wanted to talk about the difference between the obligation of contract and the regulation of contract. a couple of problems with that theory. i think it is a make place quibble. first, in fletcher, marshall said states may regulate. two years later he said it more elaborately and in 1827, it is only constitutional dissent, marshall talked about no inconsistency between the normal regulation of contract and the notion of the contract clause and extinguishment, revocation of a contractual agreement. i think the 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 true to his principles which were a blend of robust marshall nationalism and a certain respect for state rights. but to do that in light of all sorts of opinion -- and gibbons versus ogden johnson concurs that writing an opinion in which he does a couple of interesting things. me, one ofay, excuse the things we have a commerce clause is because states were such bad actors. he said the states caused this problem. that is jeffersonian heresy. he goes on in that same opinion to say i think federal power over commerce is exclusive and issued john marshall duct in his opinion to the court that was ultimately resolved against johnson many years later. johnson is walking a very fine line. he is trying to keep us from

having this heresy of constitutional obstruction, relying on natural law which, after all, if natural law binds the deity, maybe it will bind john marshall, a mere mortal. this brings us to whitney. whitney is another one of those warhorses in the constitutional curriculum and the facts are well known. psion of whitney was a a prominent california family descended from the mayflower. she was referred to as a woman of sophistication and intelligent, which is going to come back to haunt her. she got a college degree. she did social work in new york city and then a large amount of charity work in california. she became very sensitive to the plight of the working person, to the problems caused by poverty during the progressive era. era that was just

beginning to emerge. what does she do? she becomes a member of the communist labor party of california. in attends a meeting november 1919. she signs a resolution saying, we are committed to peaceful change, but none of that mattered. the supreme court of california had already mattered -- you all know what is coming -- communism is truly and totally evil. the length between the communist labor party in california in the industrial workers of the world, one of the most despised groups by the establishment, helped doom charlotte whitney. her case eventually comes to the court in 1927. the court issues an opinion where they very quickly come to the conclusion she is guilty. she participated in this evil,g, this group is

this group is plotting against all america stands for. brandeisave justice joined by justice holmes issuing a concurrence and people have speculated about that ever since. is tiedal explanation up to an aspect of justice brandeis that is worth noting. he said this in his opinion. he said there were procedural defects in the record below. the attorneys representing charlotte whitney did not, in fact, make a first amendment issue of what was going on. they did not introduce the appropriate evidence and he says this is a fact bound inquiry and on the record below there was evidence that was given to the judge and jury that could support the conviction. on that basis we cannot overturn this verdict.

and itthis in an opinion is famous that reads like a premier on why free speech is important. why the first amendment is a centerpiece in american democracy. freedom to think as you will and areak as you think means indispensable in value. without free speech and assembly discussion would be futile. with them it affords adequate protection against noxious doctrine. the greatest menace to freedom is inert people. public discussion is a political duty and that should be a fundamental principle of the american government. and the lines everyone remembers, "fear of serious injury cannot alone justify suppression of free speech and assembly. men feared witches and burnt women.

is to free them from irrational fears." the fact the legislature determined these kinds of parties were anathema was irrelevant. we need to take the test and refine it. what was the test? holmes, in the shank case, articulated the clear and present danger test. this focuses on whether certain words are uttered in such circumstances as to bring about a clear and present danger that they will cause the substitute people the government has the right to prevent -- the evil thete government has the right to prevent. that was the standard in place.

brandeis has a reputation as a progressive, as someone who supported innovation, as someone who believed in fostering the rights of individuals. brandeis also had a well-deserved reputation as someone who believed in judicial caution. he lists six factors the court should take into account when it hears constitutional cases and, in taking them into account, should refuse to hear the case. three of them are directly on point with regard to whitney. counseling that you should not act in the way the court did, in fact, not act making his concurrence look like it is .onsistence with his philosophy

[no audio] he attended a meeting, he had the misfortune to do in michigan where they were less tolerant of communism than california. we had a second misfortune. he died before his case was resolved. oral argument was held, brandeis dissent, his and then a two page concurrence for whitney saying, for the reasons i announced in my of the i concur because record of defect, but i support the first amendment and free speech. when rutenberg died you can't do that anymore.

this traditional explanation strikes me as plausible given what i have told you about brandeis in judicial restraint. it also strikes me as potentially very misleading and very incomplete. one, it does not do justice -- i use that with a certain amount of caution -- to what the supreme court did between 1919 and 1927 with the clear and present danger test. particular, a case decided in 1925 which is famous for its casual, not labored, to sentence incorporation of this free speech guarantee unlike case that would follow her page upon page is consumed to justify incorporation, the court said the new york statute is subject to the free-speech prescription. the court also did something

like pulling aside the curtain on the wizard of oz. it revealed what was really thinking. remember when i told you clear and present danger certain words in certain circumstances? the court made it absolutely clear what it meant by certain words. it point blank said, there are certain things which, by their very nature when they are discussed, pose a risk that society cannot tolerate. in other words, it is the doctrine. it is not the statement, it is not the usage, we do not care -- wend puny anonymity's are putting out with the court would call propaganda. those of us who are familiar with the 1940's and 1950's red scare know what propaganda is.

it is twisted. it is dishonest. it is un-american. it tells you you should not be eating apple pie wrapping yourself in the flag because good americans would never do that. this reveals what is really going on. many years later in the infamous 1950's red scare case the court made that absolutely clear when it said, the real inquiry under clear and present danger is the gravity of the people discounted by its improbability. which means if you think notthing is so evil, you do care it is ever going to happen and you're going to go after it. it was not until 1969 in brandenburg the supreme court cleared this effect and -- defect and brought the prosecution of speech were homes and abrams --

and -- activityely unlawful will occur. that is the breakthrough that has been the doctrine ever since. litlow. never mentions ways that sayn they have a presumption, but also writes it in ways this is the question is whether or not the judgment that harm might occur is reasonable. whitney does refer to free speech is a fundamental right, but what we have to remember when we read that passage is

that in 1927 that did not mean much. if you look at the cases mire ierce, that talk about difference. by theamplified decisions in its wake and we get fundamental rights robust protection. the whitney concurrence still says reasonable problem. it is one thing for the supreme court to write a rule and another thing to be able to trust the judicial machine to implement it in the ways you want. juries become a cause for concern. indeed, in a remarkable exchange of letters between learned hand handliver holmes, judge points out the problem with

juries and their ability to be deeply influenced by the ebb and flow of current events. i think there is a respectable argument that brandeis was aware of this problem and was reluctant to take that next necessary step, especially in a case fraught with procedural difficulties. concurrence isy the model of what a dissent can be. numerous others have adopted that same line, but i think it was a concurrence for all sorts of reasons beyond the one brandeis proffered. second reason, context is extraordinarily important in this area. thegeneral myth about 1920's is that we got deeper and deeper into the roaring 20's.

concerns about communism, about germany in world war i were receding. the russian revolution was over, -- execution of these of the czar were fading memory. henry ford had, for better or worse, started the revolution in transportation that led to the transformation of the station. nation. veneerpe superficial relied antipathy in regard to communism, the communist party, organized labor, and all those that john henry whitmore wrote an article where he said in effect, they are

ofmoting the freedom thuggery. it is the evils of all five men in the dish that no one ever dish that no one ever read. we forget the conservatism -- in the new deal an official spokesman for the american bar association writes an article where he says, the federal anernment is not institution. whatever it is this government should not be doing. couple that with what you see

when you look in the newspapers at the time. january 1926, communists were into worldwide propaganda. october 22, 1926 the san francisco examiner, terror thug caught and confesses ford beaten with hammer and strike rights. whitney, month before the new york times, the american legion issued a report condemning radicalization in the public schools . "this is entirely out of place for discussions disregarding the united states government to be had in a institution supported by taxes especially when there are so great a presumption that organizations concerned are

concerned with a parent body whose aims and objects are undermining our form of government." legionnt of the civil saying, "college trained men and women are the most dangerous element in the communist movement and communist doctrines are preached by renegade americans instead of by the foreigners who formally adopted them." even american labor unions are not terribly popular. they felt compelled to do everything they could to distance themselves from the red peril. mes were and hol surely aware of the risks posed by a public fixation. these movements were an anathema to the american way of life.

judge hand -- what i referred to earlier -- cases occur when men are excited and since juries are questionable that what is your motive is not a dangerous test. in any case, unless one is set in conformity it will serve to intimidate, throw a scare into many a man who met moderate the storm. i know it did in 1918. i think this context is important in terms of understanding much of the thinking that goes into saying the court did make some progress. in 1937 it effectively overturned the notion that simply being a member of a party was enough to get a conviction.

of course, in 1937 the ravages of the great depression were fading, stalin was busy destroying his own government, roosevelt was promulgating policies that made it look like the soviet union was our friend. in 1941, the day after pearl harbor, the bridges case, a contempt citation, 5-4 decision, the court did what holmes wanted to do in abram and what brandeis talked about in whitney. it said the clear and present danger must be objectively clear and really present. but, of course, in december 1941, what was russia? it was about to become our trusted ally in the great crusade against nazi germany. then we go to 1950's, the red scare in dennis. context becomes extraordinarily important in terms of shaping these kinds of decisions.

so what can we say about concurring opinions? there are other examples. fletcher and whitney are simply the most fun. they are, to my way of thinking, stellar examples of judicial craftsmanship, efforts to bring together competing strands of fact and weave an explanation that balances divergent needs and interests. for johnson, the goal was to meet the demands of multiple masters, even as he remained true to his principles. saw -- soft -- sought to- -- charting a path to the future within which free speech would enjoy the protections required within a society that values both the quest for truth and the need for public and social order. the lines were drawn with care. they remind me of a 19th century work by a gentle man named thomas fuller, who was

discussing witches. the witch begins at first with doing tricks rather strange than hurtful. some of them are pretty and pleasing. but it is dangerous to gather flowers that grow on the banks of the pit of hell, for fear of falling in. they which play with the devil's rattles will be brought by degrees to wield his sword. and from making of sport, they come to doing of mischief. johnson and brandeis skirted what one might call the pits of 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, to find a way to give meaning to the notion that while we are technically a court of law, what we are really are looking for is a court of justice. thank you. [applause]

[captions copyright national cable satellite corp. 2020] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> american history tv is on c-span3 every weekend. all of our programs are archived at c-span.org/history. see our schedule of upcoming programs. that is c-span.org/history. >> soldiers, sailors and airmen of the allied expeditionary force, you are about to embark upon the great crusade towards which we have striven these many months. the eyes of the world are upon you. the hopes and prayers of liberty loving people everywhere arch with you. in company with our allies and brothers in arms on other fronts, you will bring about the destruction of the german war machine. the german tyranny over the peoples of europe. ad security for ourselves in

free world. your task will not be an easy one. your enemy is well-equipped and battle hardened. savagely.ght but this is 1944. 1940.as happened since the united nations have inflicted upon the germans defeat in open battle, and demand. reducedoffensive has their strength in the air and their capacity to wage war on the ground. s have given a superiority in weapons of war and placed at our disposal rate reserves of trained fighting men. the tide has turned. the freemen of the world are marching together to victory. i have full confidence in your courage and skill in battle. more thancept nothing full victory. good luck. let us all beseech the blessing

of almighty god upon this great and noble undertaking. >> chad williams is the author of "torchbearers of democracy: african american soldiers in the world war i era." next, he talks about the postwar activism of these soldiers, explaining how after fighting for the idea of democracy abroad, many returned to join movements aimed at securing more rights and better social standing for african-americans here at home. the national world war i museum and memorial in kansas city, missouri, taped this event in november 2019. laura: now i would like to introduce our first speaker for this morning, dr. chad williams. he is the samuel j and augustus professor at history and african-american studies at brandeis university. he specializes in african-american and modern