>> good evening. i am chilton davis varnerfrom atlanta. i am pleased to welcome you to the first lecture in this year's series. we are examining dissents, not

majority opinions, different aspects. you have been warned about your cell phones and apple watches so i will not repeat that but you will be in the doghouse if it goes off during the time of our evening. i also want to thank our host justice stephen breyer who against all odds agreed to come and introduce our speaker on the first day of a busy term. justice higher is one of the most -- justice breyer is one of the most faithful friends. when we have called on him, he has shown up and done a wonderful job. i want to thank him for taking time away from his busy schedule on first day of term. i don't want to be too much on his time, so i will abbreviate the introduction of justice breyer.

he was born in san francisco and received an ab from stanford, llb from harvard. he served as a law clerk to justice arthur goldberg of the supreme court of the united states during the 1964 term. after justice breyer pursued a teacher -- teaching career, 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 active liberty, interpreting our institution, making our democracy work, a judge's view, and was 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. very nice. it is 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 -- 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 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 everyone in public office and most who aren't, in washington and elsewhere, agree 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 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. you are part of the group of people making an effort. the supreme court historical society does that. so of course i would come and introduce however is speaking, and they are always good.

i always learn something. tonight we will learn about dissent. i don't always dissent. quite often i am in the majority. sometimes i dissent but this is what it is. the first of the society's for part 2019 leon silverman it series, 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 is dissent. concurrence as a dissent,

lecture. the speaker is eminently qualified. it is professor mark, the distinct professor at the university of arkansas school of law very he received his ba from boston college, higher administration from the university of nebraska and is a life member of the american law institute and wrote two related books, mccullough v, maryland, and temporary issues. that is 2002. he is published widely on the supreme court, constitution and spoke twice before this audience. so there is demand that he came back. it is very great, a badge of honor the society once you to return. please join me in welcoming the professor. [applause] >> thank you for

that gracious introduction 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 lowell, the driving force behind these things. it is a great honor and privilege. the subject is the oddity of opinions styled as conferences that actually turn out to read like to sense. -- dissents. just as johnson and his opinion in fletcher v. peck, justice brandeis and

justice homes in 1927 in california -- they are the most prominent examples of something i will call agreeably disagreeable. the court etiquette version of judicial fighting words said with a disarming smile. 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 that 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 tell him he was wrong. the next year justifier dale, 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 a the 11th amendment. we won't go any further. context is very important to what i am about to talk about. context under which john marshall became chief justice of the united states. the myth surrounding the chief justice is that john j sent his 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 a -- national government nor require public confidence and respect which as a last resort it should possess. he declined. 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. he hoped questioning would be the one. -- cushing would be the one. 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 he is the accidental chief justice. that said he took the bit between his teeth and had two missions. the first was to gainsay john jay and get the court the position it deserved to have as a coequal branch of government. he announced it with great results and affect in 1803 in marbury versus madison. the second was to ensure the court was treated with respect

i encouraging it to seek -- speak with a single voice. after mick: was decided and he engaged -- mccullough was decided, 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 to receive the approbation of all before it can be delivered of the opinion of all. marshall was dedicated to the having the court speak with a single voice. but into this peaceful habitat became william johnson. jefferson's first appointment to the court. one can only speculate 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 despised. the enmity 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 than 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 would you accept? a strange pattern.

no due diligence was overtaken and they were unaware of the fact johnson while on the south carolina court authored an opinion which if it had come to light have given at least gastric distress if not apoplexy to thomas jefferson. 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. i refer to william johnson as -- i hate this term 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 at care at the record, the indication was already there. a couple of other things. johnson joined the court after marbury. he was not part of that revolution. between marbury in 1810, there were few if any cases that came to the court which would arouse jefferson's ire. 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. in 1810, fletcher versus peck presented the first opportunity for johnson to speak out in an

area near and dear to jefferson's part. this was compounded by another development. in 1808, the treasured task which will not -- johnson issued an opinion with regard to the jeffersonian embargo where johnson took a position that countermanded the direct command from jefferson. this gave rise to an incredible dialogue. he delivered a little lecture, even president are subject to and should respond to the law. jefferson was outraged. he had his attorney general right a letter to all the court collectors in the country. there was an exchange of views like the post mccullough exchange which was published in the opinion johnson issued. when fletcher arrives, he is not one of the in crowd. he is the enemy.

he has got a problem. he wants to be true to his own principles. he wants to be true to the things he had embraced as part of the john marshall project. he also wants to appeal to his patron, thomas jefferson. how does he walk the line? fletcher versus peck is renowned for three things. the notion of a state statute can set up something that is contract similar to the contract clause, even though it is not a private agreement. the traditional common-law understanding. fletcher is the first time the supreme court declared a state law unconstitutional. third, the johnson concur. the first two are wrong. what of the first opinions johnson participated, it was a case where anticipating fletcher, john marshall held a

state statute could in fact create a contract and be subject to contract laws interpretation -- clause interpretation. united states versus peters, john marshall again, a state law is unconstitutional. the first two about fletcher, been there, done that. they are simply not true. what is true is johnson wrote an opinion in which he said i wholeheartedly agree with the court, this measure is unconstitutional. the parameters of fletcher i won't go in to. they are vaguely familiar to most of us. it is in every common-law casebook. i am unaware of any book that extracts the whole opinion. johnson said i agree this

johnson said i agree this measure is unconstitutional. the georgia legislature had done all sorts of hideous things. they passed a measure in 1807. the next year after the public found out, they repealed it. it was a controversy that consumed the nation. when it arrives and the court, it is a cause celebre. johnson issues the 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 deity. more on that in a bit. why did he do this? it is because of the context i've established. here is johnson 1810 trying to bring together competing strands. johnson for example had been a

willing participant in a series of decisions prior to macola -- macola where the supreme court recognized implied powers. johnson carved out a position with regard to the powers that were granted that was in some instances more robust than with john marshall. fletcher gives him the opportunity to simultaneously agree and disagree with john marshall and use that on natural law, one of thomas jefferson's favorite things. scholars have said few members of the supreme court have ever done as much for natural law as a principal. few individuals -- not members of the court. what does johnson do? he pins his opinion on natural law, not on what thomas jefferson condemned as john marshall's habit of twisted

vacation -- twistifications and distortion of the constitution. johnson gave an explanation which is not credible. he wanted to talk about the difference between the obligation of contract and the regulation. problems with that -- it is quite frankly they make place quibble. first in a fletcher, marshall expressly said the states may regulate. two years later in a companion case he said it more elaborately than in 1827 in his only dissent, marshall talked about no inconsistency between the normal regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a agreement. the superficial explanation is

a placeholder. the true explanation 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 respect for states rights. to do it in the light of all sorts of opinions -- given versus ogden, johnson concurs again writing an opinion where he does a couple of things. one of them is to say, excuse me, one of the reasons we have a clause is because the states were bad actors. the states caused this problem. that is jeffersonian heresy. it then goes on to say i think the federal power over congress is exclusive, an issue john marshall docked -- ducked. many years later it was different. johnson is walking a 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, perhaps it might bind john marshall a mere mortal. this brings us to whitney. whitney is another one of those warhorses in the constitutional curriculum. the facts are well known. charlotte anita whitney was the psion of a family descended from the mayflower. she was a woman of sophistication and intelligence, which will haunt her. she got a college degree and did social work in new york city and did a large amount of charitable work in california

and became very sensitive to the plight of the working person to the problems caused by poverty during the progressive era, where respect for individual rights was just barely beginning to emerge. she becomes a member of the communist labor party of california. she attends a meeting of that group in november 1919. she signs of a resolution saying we are committed to preschool change. but none of it mattered because the state -- state supreme court of california decided communism is truly and totally evil. indeed the length between the communist labor party and the industrial workers of the world, the wobblies, one of the most despised groups in the 1910s and 1920's, helped doom charlotte whitney. her case comes to the court in 1927. the court issues and opinion

where they quickly come to the conclusion she is guilty. she participated in this meeting, this group is in effect evil. this group is plotting against all that america stands for. we have justice randomized joined by justice holmes issuing a concurrence. people have speculated about that ever since. the normal expedition is tied up to an aspect of justice brandeis ' work. he said this. there were procedural defects in the record below. the attorneys that were representing charlotte whitney did not in fact make a first amendment issue of what was going on, did notzkaaa"dintrodue appropriate evidence. he says this is a fact bound inquiry. on the record below, there was

evidence that was given to the judge and the jury that could support the conviction. on that basis we can't overturn this verdict. he did this in an opinion and it is famous, that reads like a primer on why free speech is important, why the first amendment is a centerpiece. freedom to think as you will and to speak as you think are a means indispensable in value and to the discovery spread of political truth. without free speech and assembly, discussion would be futile. with them it affords 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. in the lines everybody

remembers, fear of serious injury can't alone justify suppression of free speech and assembly. it is the function of speech the function of speech to free men from their heritage of -- the bondage of irrational fears. the fact the legislature had determined these kinds of parties were anathema was irrelevant, we will not defer to these kinds of legislative judgments. we need to take the test and refine it. what was the test? in 1919, justice holmes articulated what we know as the clear and present danger test. it focuses on whether certain words are uttered in such circumstances as to bring about a clear and present danger, that they will cause evil that government has the right to

prevent. he implied that in companion cases. that arguably was the standard in place. brandeis had a well-developed reputation as a progressive. as someone who supported innovation, who believed in fostering the right of individuals. brandeis also had a well-deserved reputation as someone who believed in judicial caution. in one case the list 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 consistent with his philosophy of judicial restraint and the rules he would respect, even in the face of his laboratories and democracy case. a little known fact about whitney, in the conference, he actually prepared for what amounted to win a concurrence for issuing in a fire case. rosenberg versus michigan, he joined the communist party, attended a meeting, had the misfortune to do it in michigan where they were less tolerant of communism. he had a second misfortune, he died before his case was resolved. oral argument was held, brandeis prepared the dissent, then he prepared a two-page concurrence for whitney saying for the reasons i announced in my dissent in ruthenberg, i

concur in this case because of the records of defect but in effect i support the first amendment and free speech. when ruthenberg died, can't do that one anymore. this traditional explanation strikes me as plausible given what i have told you about brandeis and judicial restraint. it also strikes as potentially misleading and incomplete. for a couple of important reasons. one of them is it does not do justice -- i use the word with him -- a certain amount of caution, to what the supreme court did between 1919 and 1927. in particular, the case decided in 1925 which is famous for its casual, not labored, two sentence incorporation of the

free speech guarantee, unlike cases that would follow where it is page upon page consumed in an attempt to justify incorporation, the court said new york statute is subject to the free speech prescription. the court did something like toto 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 certain circumstances? in this one the court made it clear what they meant by certain words. it said there are certain things which by their very nature, when they are discussed, pose a risk society cannot tolerate. in other words it is the doctrine. it is not the statement or the usage. we don't care that poor and

puny anonymity -- the whole characteristic of the people in abrams when he did that in that case, putting out with the court would call propaganda. those of us who are familiar with the 1940's and 1950's know that value laden term. it is twisted. it is dishonest and un-american. it tells you you should not be eating apple pie. this one revealed what was going on. many years later in dennis, the infamous 1950's red scare case, the court made that 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 don't care it is never going to

happen, you are not going to go after it. it was not until 1969 in brandenburg the supreme court cleared the defect and brought the test for the prosecution of speech that to holmes and abrams and presumably holmes and brandeis and whitney wanted to take it. you go after the speech if and only if you are advocating imminent lawless activity and it is likely under the facts and circumstances that unlawful activity will occur. that was the breakthrough. that has been the doctrine ever since. brandeis never mentions that case. he never discusses the crucial gloss on clear and present danger in his whitney opinion. he writes in ways to say we have a presumption, but he writes in ways that says the question is whether or not the judgment that harm might occur

is reasonable. whitney does refer to free speech as a fundamental right. what we have to remember when we read the passage in whitney with the blessings of hindsight is in 1927 it didn't mean very much. if you look at the cases meyer and pierce, they talk about reasonableness, about deference. it is not until the footnote amplified by the decisions in its wake we begin to get fundamental rights and robust protection. the whitney concurrence still says reasonable, but a problem. it is one thing to write a rule. it is another thing to be able to trust the judicial machine to implement it in the ways you want. judges and juries become a cause for concern. in a remarkable exchange of

letters between two people in 1920, they point out the problem with juries and the herd mentality and being influenced by current events. i think there is a respectable argument that brandeis was aware of this problem and was reluctant to take the next necessary step, especially in a case fraught with procedural difficulties. yes the whitney concurrence has been described as the model of what a dissent can be. numerous others have adopted that line. it was a concurrence first reason for all sorts of important reasons beyond the one brandeis proffered. the second reason, context is important in this area.

the general myth about the 1920's is we got deeper and deeper into the roaring 1920's, concerns of communism and germany and world war i were receding. the russian revolution was over. the execution of the czar was a fading memory. consumer goods were being introduced many people were able to access. henry ford had for better or worse started the revolution and transportation that led to the transformation of this nation. that superficial veneer belied a continuing antipathy that was out there with regard to communism, the communist party, organized labor and all of the other evils that john henry

wigmore, after holmes issued his dissent in abrams, wrote an article where he said in effect they are promoting the freedom of [indiscernible] totally sobering article. i commend it to people. it is a catalog of all of the evils that five men publishing a publication in yiddish that got virtually no certification, no one ever read, going to bring down the war effort of the united states. we tend to forget another reality, the significant conservativism. in the new deal, john davis, a famous attorney, infamous in some respects, official spokesman for the american bar association, writes an article he says the federal government is not [indiscernible] i.e.

what is all of this new deal stuff? it is not with the government should be doing. couple that with what you see if you look in the newspapers of the time, january 22, the new york times, communists were boring into negro labor. october 22, 1926, the banner headlines, san francisco examiner, third [indiscernible] terror thug caught, confesses four beaten with hammer in strike riots. one month before whitney, new york times, american legion issued a report. condemning radicalization in

the public schools, submitting it is 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 when the organization concerned is identified with a parent body. think moscow, whose aims and objects are undermining our form of government. another opinion, the president of the civil legion saying 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 them. the american labor unions themselves not terribly popular felt compelled to do everything they could to distance themselves from the red peril. brandeis and holmes were aware of this. they were surely aware of the risks posed by a public

fixation that continue to typify these movements as totally anathema to the american way of life. the judge i referred to earlier. since cases actually occur when men are excited and since juries are especially clannish, it is questionable whether the test of motive, i.e. what is your motive, is not a dangerous test. juries won't regard the difference between the result of the words and purposes of the utterer. unless one is set in conformity, it will intimidate and through a scare into many a man who might moderate the storms of popular feeling. i know it did in 1918. this context is important in terms of understanding much of the thinking that goes into saying concur, not dissent.

the court did make some progress. in 1937 in effectively overturned the notion that simply being a member of a party was enough to get a conviction. in 1937, the ravages of the great depression were fading, stalin was destroying his own government, roosevelt was promulgating policies that made it look like the soviet union was our friend. after pearl harbor, the bridges case, the 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 in december 1941, what was russia? it was about to become our

trusted ally against nazi germany. and then the red scare. context becomes important in terms of shaping these decisions. what can we say about concurring opinions? there are other examples. fletcher and whitney are the most fun. they are stellar examples of judicial craftsmanship, efforts to bring to the other competing strands and weave an explanation. for johnson it was to meet the demands of multiple masters even remaining true to his ideals. brandeis was charting a path to the future with free speech. society that values the quest of truth and the need for public and social order. the lines were drawn with care. they remind me of a 19th

century work by thomas fuller who was discussing witches. the witch begins doing tricks rather strange that can be hurtful. they are pretty unpleasing. it is dangerous to gather flowers on the pit banks of hell. from making of sport, they come to doing mischief. johnson and brandeis skirted what one might call the pits of hell. they crafted things 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 looking for is a court of justice. thank you. [applause]

, americans people tv who explore every weekend. coming up this weekend, saturday at 2 pm eastern, the white house conference on american history with president trump september 17th executive order establishing a national commission to, quote patriotic education, then at 5:05 pm eastern, a look at night see persecution and murder of the disabled. with patricia, of the u.s. holocaust memorial museum. sunday at 4 pm eastern, on real america, a series of archival films on wildfires, firefighters, and fire prevention.

and at 6:30 pm eastern watch the 1984 vice presidential debate between george h. w. bush, and -- pharaoh. exploring the american story, watch american history tv this weekend, on c-span 3.

now look at some of the constitutional issues to support -- the court face during world war i. we will hear from supreme court your status sonia sotomayor, and retire professor university. i am a vice president of the historical society, i want to welcome everybody here to our first lecture of the 2018 lecture series which is dealing with the supreme court and world war i. this being the 100th anniversary, if you will, of the end of world war i. so we have very interesting lecture tonight, and the whole series has been quite interesting. before i go further, however, i've been instructed to tell you to please turn off anti cellphones, apple watches,