radio app. dissenting at the supreme court is a series hosted by the supreme court historical society. next on american history tv university of arkansas law professor mark kilenbeck is introduced and then discusses several opinions decided in cases between 1810 and 1927. good evening, ladies and gentlemen. i'm pleased to welcome you in the first lecture in the silverman series. this year we're examining dissent not majority opinions, different aspects thereof. you've already been warned about your cellphones and your apple watches and so forth, so i won't 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 steven brier who against all odds agreed to come and introduce our speaker this evening on the first day of a busy term. justice brier 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 wanted 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 brier's time so i'm going to abbreviate the introduction of justice brier. he was born in san francisco. he received an a.b. from stanford, a b.a. from maudlin college oxford and an mlb 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 brier pursued a career of teaching and public service president jimmy carter appointed him to the u.s. court of appeals for the first circuit in 1980. in 1994 president clinton nominated justice brier as an associate justice of the supreme court to succeed harry blackman. he took his seat august 3rd, 1994. since joining the court justice brier has completed no less than a number of books including "active liberty, interpreting our democratic constitution," making our democracy work, a judge's view, and then most recently "the court and the world, american law and the new global realities."

with thanks and appreciation i would ask you to welcome justice steven brier. >> thank you. i'm glad you're all here. i was just talking too my wife has written a book. she's a clinical psychologist and she just wrote a book on what you do if your child is very sick, and very helpful to a small group of people. she was talking about it as st. judes in memphis so i couldn't resist talking about one of my

books. they agreed to most important thing to do is somehow get the word out to the next generation we do have history, we are a democracy, we do have in fact a long history of ups and downs but basically it's a society today is democratic, that does have basic human rights protected, not perfectly and is more and more a society that is diverse and that treats everyone as part of this group you are part of the group of people making an effort and the supreme court historical society does that. and so of course i would come and introduce whoever is speaking and they're always good. i always learn something, and tonight we'll learn about dissent. i don't always dissent. quite often i'm in the majority

and then i don't pick that up. and sometimes i dissent. this is what is it the first of the society's four-part 2019 lectureman series and its subject is dissent and the supreme court in new perspectives. i mean, i've seen what you've done over long periods of time in this organization. keep doing it. just keep doing it. this is just one example. they have teacher training programs. you have the high school civic teachers, the publications of the supreme court history. titled tonight is dissent, a concurrence of dissent, fletcher to whitney. the speaker is imminently qualified. its professor mark, he's the distinguished professor at the university of arkansas school of law. he received his b.a. from boston

college, his j.d. and phd in higher education administration in university of nebraska. he's a life member of the american institute. he's written two books. that's an older book, 2002. he's published widely on the supreme court the constitution, and he's spoken twice before to this audience. it's a badge of honor the society wants you to return. so please join me in welcoming professor kilenbeck. >> thank you for that gracious introduction justice brier, and for taking the time from a busy first monday. i did not realize until we were

down stairs that on october 7, 1935, 84 odd years ago the first monday of the first term that the court spent in this building so there's a certain degree of residence and it's just quite humbling to be here. i want to thank the society for the invitation and in particular jennifer lowe who is the driving force behind these things. it's just a great honor and privilege to be here. the subject tonight is the oddity of opinions, style concurrences that actually turn out to read much like dissents. justice johnson and his opinion in fletcher v. peck, justice brandice joined by justice holmes in 1927 in whitney, california. they are two of the most prominent examples of something i would call being 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 that the very, very first reported opinion of the court by an obscure justice thomas johnson of whom it was said no one has served on the court 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 -- the next year justice -- this was 1972, the next year a more consequential dissent. one out of five saying despite the constitution you could not bring a suit against the state of georgia. it produced the 11th amendment.

we don't go any further with that particular one. now, context is very important to what i'm about to talk about tonight. and in particular context under which john marshall became chief justice of the united states. the myth surrounding chief justice marshall is that john j. sent his infamous letter to president adams after he had already been nominated and confirmed within which he depicted the court as follows. i left the bench perfectly convinced that under a system so defective the court would not obtain the energy, weight and dignity which are essential to affording it due support to the national government nor acquire public confidence and respect. which as the last resort as justice of the nation it should possess and he declined. this set in motion a complex sequence of events in which john marshal was not the inevitable nominee. president adams was determined to elevate a sitting member of the court. he hoped that kushing who would

be his first choice would decline. he wanted to nominate patterson. he had his son working for four weeks in philadelphia to convince jared 'ingersol to effect the seat that would be vacated. i have a habit of referring to john marshal as the accidental chief justice. that said he took the judicial bit between his teeth and he had two missions. the first of those was to gain say john j. and give the court the position it deserved to have as a coequal branch of government. and as everyone knows he announced that with great result and effect in 1803 in marbury vs. madison. the second was to ensure that the court was treated with respect by encouraging it to speak with a single voice. shortly after mcculla was decided in 1819 and he engaged in his debate marshal 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 as the opinion of all. and so marshal was dedicated to the idea of having the court speak with a single voice. into this peaceful little 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 marshal. his distant cousin who he quite frankly despised.

indeed in a strangely prophetic letter to jails madison in 1790 he complained about marshal and said we need to find something better to do with him to get him out of the way. quote, nothing could be better done than to make him a judge. well, that wish became true much to jefferson's chagrin. the theory was to be william johnson would be an ardent supporter of jeffersonian result to things. 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 down right aploplexy to thomas jefferson. why? because in that opinion he did two things that were enathema. he recognized the constitutionality of the bank of the united states. this is why i refer to william johnson as people like to talk about stealth nominees. this was our first stealth nominee. no they 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 marshal. this was not because john

marshall had legendary persuasive powers but if you looked at care at johnson's record that 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 and 1810 there really were few if any cases that came to the court that were going to arouse jefferson's ire. probably the single most important exception where the case is coming out of the conspiracy where johnson in fact did dissent but not on a constitutional basis. and so in 1810 fletcher v. peck presented the first opportunity for johnson to speak out in an area near and dear to jefferson's heart. now, this was compounded by another development. in 1808 city owned a bench

riding the circuits, a treasured task that will not be brought back on trust. johnson issued an opinion with regard to the jeffersonian embargo where johnson took a position that countermanded a direct command from jefferson. 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 caesar rodney write a letter to all court collectors in the country. there was an exchange of views much like the post-mcculla exchange all of which was published in the opinion johnson issued. so had when fletcher arrives at the court in 1810 he's not one of the in crowd. he is the enemy. he's got a problem. that problem is three fold. he wants to be true to his own principles. he wants to be true to the things that he had embraced as

part of the john marshall project, but he also wants to appeal to his patron, thomas jefferson. so how does he walk that line. fletcher v. peck is renowned for three things. first, the notion that a state statute can setup something that is contract subject to the contract clause. even though it is not a private agreement the traditional common law understanding of contract. second, fletcher's the first time the supreme court declared a state law unconstitutional. third, did johnson conquer. the first two are simply wong prch one of the first opinions that johnson participated 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 again a state law is unconstitutional. the first two myths about fletcher, been there, done that, they're simply 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. now, the parameters of fletcher i won't go into detail. they're vaguely familiar to most of us. fletcher is a war-horse. i'm unaware of any casebook that actually extracts the whole opinion. johnson said i agree that this measure is unconstitutional. georgia -- the georgia legislator had done all sorts of hideous things land fraud. they passed a measure in 1807. the next year after the public found out about it they repealed

it. it was a vast controversy that consumed the nation. so when arrives at the court it is a cause. and johnson wants to walk this very fine line so he issues an opinion where he says i agree, unconstitutional. not, however, because it violates the contract clause. rather because it violates natural law, which he said binds even the diety. more of that in just a bit. now, whidid he do this? i think it's because of the context i've established. here's johnson 1810 trying to bring together competing strands. johnson, for example, had been a willing participate want in a series of decisions prior to mcculla where the supreme court recognized implied powers. johnson carved out a position with regard to the powers of --

that were expressly granted that was in some instances even more robust than that of john marshall. fletcher gives him the opportunity to simultaneously agree and disagree with john marshall and to hinge that agreement on natural law, which was one of thomas jefferson's favorite things. indeed, some scholars have said few members of the supreme court have ever done as much for natural law as a principle. few individuals in the united states, excuse me, not members of the court as thomas jefferson. so what does johnson do? he pins his opinion on natural law. not on what thomas jefferson condemned as john marshall's habit of twistifications and distortions of the constitution. indeed, 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. first, in fletcher marshall expressly said states may regulate. two years later in his companion case he said it more elaborately and then in 1827 in his only constitutional dissent marshall at length talked about no inconsistency between the normal regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a contractual agreement. 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 marshal nationalism and a certain respect for state rights. but to do it in the light of all sorts of opinions -- johnson conquers yet again writing an opinion in which he does a couple of interesting things. one of them is to say excuse me i think one of the reasons why we have a commerce clause is because it states were such bad actors. and so he says the states cause this problem. that's jeffersonian hearsay. he then goes onto say in that opinion i think federal powers is exclusive and issue john marshall in his opinion for the court that was ultimately resolved against johnson a few years later in a court decision coolly vs. board of ordinance. so johnson is walking a very fine line. he is trying to keep us from having this hearsay of

constitutional obstruction, relying on natural law, which after all if natural law binds the diety, perhaps it might even bind john marshall, a mere mortal. this brings us to whitney, and whitney is another one of those war-horses in the constitutional curriculum and the facts are well-known. the scion a very prominent california family descended from the mayflour, she was referred to as a woman of sophistication and intelligence which is going to come back to haunt her inasmuch she got a college degree and did social work in new york city, and became very sensitive to the plight of the working person, to the problems caused by poverty during the progressive era, an era where respect for individual rights

was just barely beginning to emerge. so what does she do? she becomes a member of the communist labor party of california. she attends a meeting of that group in november of 1919. she signs a resolution saying we're committed to peaceful change, but none of that matters because the state court of california had already decided you all know what's coming communism is truly and totally evil. indeed the link between the communist labor party of california and the industrial workers of the world, the wobblies one of the most despised group of the establishment in the teens and 20s helped doom charlotte whitney. her case eventually comes to the court in 1927, and the court issues an opinion where they very quickly come to the conclusion she's guilty. she participated in this meeting.

this group is in effect evil. this group is plotting against all that america stands for. we then have justice brandice joined by justice holmes issuing a concurrence. and people have speculated about that ever since. now, the normal explanation is tied up to an aspect worth noting and he said this in his opinion. there were procedural defects in the record below. the attorneys that was representing charlotte whitney did not, in fact, make a first amendment issue of what was going on. did not introduce the appropriate evidence. and he says this is 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. now, he did this in an opinion,

and it's famous. it reads like a primer on why free speech is important, why the first amendment is center piece in american democracy. freedom to think as you will and to speak as you think are means indispensable in value and to the discovery spread of political truth. without free speech and assembly discussion would be futile. with them discussion affords adequate protection against the dissemination of noxious doctrine. the greatest menace to freedom is an inert people. public discussion is a political duty. and that should be a fundamental principle of the american government. and then in the lines that everybody remembers, fear of serious injury cannot alone justify suppression of free speech and assembly. men feared witches and burpt

wom weren't women. it is the function of speech to free men from the bondage of irrational fears. the fact that the legislator had determined that these kinds of parties were inathema was irrelevant. we need to take the test and refine it. now, what was that test? in 1919 justice holmes in a case articulated what we know are the clear and present danger test, an inquiry that focuses on whether certain words are uttered in such circumstances as to bring about a clear and present danger that they will cause the substantive evil that government has to right to prevent. he amplified that in a couple of companion cases, and that arguably was the standard that was in place. now, brandice had a well-developed reputation as a

progressive, as someone who supported innovation, as someone who believed in fostering the rights of individuals. brandice also had a well-deserved reputation as someone who believed in judicial caution. so, for example, in ash wonder vs. tva, his dissent in that case 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 shouldn't act in the way that the court kid in fact not act making his concurrence look like it is totally consistent with, a, his philosophy of judicial restraint, and b, the rules that he would respect even in the

face of laboratories of democracy case, et cetera. a little known fact about whitney he prepared for issuance in a prior case ruth aenbering . michigan. he attended a meeting and he unfortunately attended in michigan where they were less tolerant at that time. he had a second misfortune, he died before his case was resolved. oral argument was held. brandice prepared his dissent for that case and then he prepared a little two page concurrence for whitney saying for the reasons i announced in my dissent in ruthenburg decided today but in fact i support the first amendment and freedom of free speech. when he died, poof, can't do

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

much like todo pulling aside the curtain on the "wizard of oz." it revealed what it was thinking. remember when i told you the clear and present danger, certain words in such circumstances? in getlow it point-blank said there are certain things which by their very nature when they were discussed pose a risk that society cannot tolerate. in other words, it's the doctrine. it's not the statement, it's not the usage. we don't care that poor and puny anonymities, justice holmes' characterization of the people in abrams when he formulated his dissent in that case were putting out what the court would routinely call in the '20s propaganda. now those of us familiar with the 1940s and '50s and red scare know what a value laden term

propaganda is. it's twisted, it's dishonest, it's un-american. it tells you you shouldn't be eating apple pie or wrapping yourself in the american flag. it reveals what's really going on. indeed many years later in dennis, the infamous 1950s 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 evil discounted by its improbability, which means if you think something is so evil you didn't care that it's never going to happen. you're going to go after it. and it wasn't until 1969 in brand brandenburg that the supreme court cleared this defect and brought the test for the prosecution of speech back to where holmes and abrams and presumably holmes and brandice

and whitney wanted to take it. ie, you go after the speech if and only if you are actually advocating imminent lawless activity and it is likely under the facts and circumstances that that lawful -- unlawful activity will occur. that was the break through. that's been the doctrine ever since. brandice never mentions gitlow. he never discusses this crucial gloss on his whitney opinion. he writes it in ways that say we have a rebuttal presumption, but he also writes it in ways that says the question is whether or not that adjustment harm might occur is reasonable. now, whitney does refer to free speech as a fundamental right, but what we have to remember when we read that passage in whitney with hindsight is that

in 1927 that didn't mean very much. if you look at the cases, meyer and pierce, they talk about reasonableness, about deference. it's not until the footnotes amplified by the decisions in its wake we begin to give fundamental rights robust protection. so 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 machinery below to implement it in the ways that you want. judges and juries becomes a cause for concern. indeed in a remarkable exchange of letters 1919 through 1920 the judge points out the problem

with juries and their herd mentality and the ability to be deeply influenced by the ebb and flow and current events. i think there's a respectable argument that brandice was aware of this problem and was reluctant to take that next necessary step especially in a case fraught with procedural difficulties. yes, the whitney concurrence described it as a model of what dissent can be. numerous others have adopted that same line. i think it was a concurrence for all sorts of very important reasons beyond the one brandice coffered. second reason context is extremely important in this area. the general myth about the 1920s is that we got deeper and deeper into the roaring '20s. concerns about communism, about

germany and world war i were receding. the russian revolution was over. the execution of the czar was a fading memory. prosperity was rampant. consumer goods were being introduced that many, many people were able to access. henry ford had for better or worse started the revolution in transportation that led to the transformation of this nation. that superficial veneer belied an antipathy out there with regard to communism, the communist party, organized labor and all those other evils that john henry wigmore after holmes issued his dissent in abrams wrote an article where he said in effect they are promoting,

quote, the freedom of fugary. total sobering article. it's a catalog of all the evils that five men publishing a publication in yiddish that got 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 significant conservatism. early in the new deal john w. davis, famous attorney, infamous in some respects, official spokesman for the american bar association writes an article where he says the federal government is not an eleemosynary institution. ie., what's all this new deal stuff, it ain't what this government ought to be doing. couple that with what you see if

you look in the newspapers of the time, january 22, 1926, "the new york times," communists were boring into like worms or something negro labor directed by the congress international in moscow as part of its worldwide propaganda. october 22, 1926, banner headline, san francisco examiner, third terror thug caught, confesses, four beaten with hammer in strike riots. april 18, 1927, one month before whitney, "the new york times," the american legion had issued a report condemning radicalization in the public schools. quote, submitting that it is entirely out of place for discussions tending to create disregard for the united states government to be had in an educational institution supported by taxes especially it's that true when so great a presumption when the organization concern is identified with a parent body.

think moskow whose aims and objects are undermining our form of government. another opinion. president of the civil legion saying, quote, college trained men and women -- watch out for college trained men and women -- are the most dangerous element in the communist movement and communist doctrines are now preached by renegade americans instead of by the foreigners who adopted thel. even labor unions themselves not terribly popular felt compelled to do everything they could to distance them isself from the red peril. now, brandice and holmes were surely aware of this. they were surely aware of the risk posed by a public fixation to continue to typify these kinds of movement as totally

enathema to the american way of life. all i say is that cases actually occur when many are excited. and since juries are especially clammish it's very questionable whether the test of motive, i.e., what is your motive is a dangerous test. in any case unless one is rather set in conformity it will serve to if intimidate, to throw a scare into many a man who might moderate the storms of popular feeling. i know it did in 1918. i think this context is important in terms of understanding much of the thinking that goes into saying concur, not dissent. now, the court did make some progress. in 1937 it effectually overturned the notion 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. the day after pearl harbor the contempt citation, 5-4 decision, the court did what holmes wanted to do in abram 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? it was about to become our trusted ally in the great crusade against nazi germ aeany. then we go to 1950s the red scare in dennis. context becomes extraordinarily important in terms of shaping

these kinds of decisions. so what can we say about concuring opinions? there are other examples. fletcher and whitney are simply the most fun. they are in my way thinking of stellar examples of judicial craftsmanship. efforts to bring together competing strands of law and fact and weave an explanation that balances divergent needs and interests. brandice sought to give effect to his abiding sense for the need of judicial restraint while charting a path toward the future within which free speech would enjoy the protections required in a society that values both the quest for truth and the need for public and social order. the lines were drawn with care and remindf me of a 19th century work by the name of thomas fuller who's discussing witches. the witch begins at first with doing tricks rather strange than

hurtful. yea, 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. will 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 really are looking for is a court of justice. thank you. [ applause ] tonight, on american history

tv, our series landmark cases. produced in cooperation with the national constitution center, we explore the issues, people, and places involved in some of the most significant supreme court cases in our nation's history. at 8:00 eastern, we begin with map v. ohio from a 1961 case, holding the evidence obtained through an illegal search is not admissible in court. at 9:30 eastern, from the 1962 case baker v. carr, stabbing the manner by which a state legislature apportions seats is a constitutional question, not a political question. and therefore, it could be decided by federal court. watch landmark cases tonight on c-span3 and any time at c-span.org. american history tv on

c-span3, exploring the people and events that tell the american story every weekend. coming up this weekend, saturday, at 6:00 p.m. eastern on the civil war, historian harold holtzer and valerie paly talk about artifacts related to the july 1863 draft riots in new york city. featured in their joint publication, the civil war in 50 objects. on sunday, at 6:00 p.m., on american artifacts, we'll tour ft. monroe museum, the largest stone fort in the united states, which sits at the mouth of the chesapeake bay near hampton, virginia. hear about how the fort served as a beacon of freedom for enslaved people who were protected at the union stronghold and how it held former confederate president jefferson davis as prisoner for two years after the war. at 7:00 p.m., a look at fdr, truman, and the atomic bomb on the heels of the 75th anniversary of the atomic

bombings on hiroshima and nagasaki with president truman's grandson. fdr presidential library and museum director paul sparrow, and historian edward langal. at 8:00 p.m., on the presidency, ronald reagan, 1983 interview with readers digest. and his 1988 interview with the bbc's godfrey hodson. both interviews were conducted from the oval office with reagan discussing a variety of issues including his hollywood days, the 1983 bombing that killed u.s. marines in beirut, lebanon. his vision for u.s./soviet relations and the assassination attempt that left him seriously wounded. exploring the american story. watch american history tv this weekend on c-span3. during the summer months, reach out to your elected officials with c-span's congressional directory. it contains all the contact information you need to stay in

touch with members of congress, federal agencies, and state governors. order your copy online today at c-spanstore.org. up next, the supreme court historical society hosts a discussion on the 1905 u.s. supreme court case, lochner v. new york. in the decision, the court ruled a new york law limiting the number of hours a baker could work violated the 14th amendment's guaranteed liberty of contract. the decision ushered in what's known in legal history as the lochner era, with the court striking down many state and federal regulations on working conditions over a three-decade period. supreme court justice stephen breyer introduces this event. it's just over an hour. let me now mention how much we appreciate the fact that justice breyer has agreed to host this