I am pleased to welcome you to the first lecture in this years series. We are examining dissents, not majority opinions, different aspects. About youren warned 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. Hosto want to thank our whoice Stephen Breyer 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. 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, appointedjimmy carter 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 view,acy work, a judges 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. 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 wife has written a book. She is a clinical psychologist and worked at danafarber 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. Judes 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 arent, 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 CourtHistorical 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 dont always dissent. Quite often i am in the majority. Sometimes i dissent but this is what it is. The first of the societys 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. , the professor mark distinct professor at the university of Arkansas School of law very he received his ba from highercollege, administration from the university of nebraska and is a life member of the american law relatede and wrote two 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. , a badge ofreat honor the society once you to return. Please join me in welcoming the professor. [applause] mark thank you for that gracious introduction and for taking the time from a busy first monday. I didnt realize until you were 1935,airs on october 7, 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 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 justiceher v. Peck, 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. Dale,xt year justifier 1792 in a more consequential dissent, one out of five saying in spite of the clear text of the constitution, you couldnt bring a suit against the state of georgia. A the 11thoduced amendment. We wont 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 national to a 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. 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 was elevated. So he is the accidental chief justice. Bit said he took the between his teeth and had two missions. The first was to gainsay john jay and get the court the asition it deserved to have 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. And heick was decided 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. To thel was dedicated having the court speak with a single voice. But into this peaceful habitat became William Johnson. Jeffersons 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. Was a leitmotif from the 1790s on. Letterrangely prophetic 1790, hemadison in 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 jeffersons 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. As r to William Johnson i hate this term but people like to talk about stealth nominees. This was our first stealth nominee. 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 Marshalls 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 jeffersons ire. The single most important exception were the cases out of whererr conspiracy johnson in fact did dissent but not on a constitutional basis. Peck10, fletcher versus presented the first opportunity for johnson to speak out in an toa near and dear jeffersons 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. 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 commonlaw understanding. Fletcher is the first time the Supreme Court declared a state law unconstitutional. Hird, 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. Is johnson wrote an opinion in which he said i wholeheartedly agree with the court, this measure is unconstitutional. The parameters of fletcher i wont go in to. Toy are vaguely familiar most of us. It is in every commonlaw casebook. I am unaware of any book that extracts the whole opinion. 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. Court, arrives and the 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 bindsl law, which he said even the deity. More on that in a bit. Why did he do this . It is because of the context ive established. 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 jeffersonsthomas 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 Marshalls habit of twisted twistifications and distortion of the constitution. Johnson gave an explanation which is not credible. He wanted to talk about the between the obligation of contract and the regulation. Isblems with that it 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 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 wherewriting an opinion 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 ducked. Docked 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 1919. In november 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 1920s, 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 not introduce the 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 cant 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 cant 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 . Holmes, justice articulated what we know as the test. And present danger 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 welldeveloped reputation as a progressive. As someone who supported innovation, who believed in fostering the right of individuals. Brandeis also had a welldeserved 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 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 twopage concurrence for whitney saying for the reasons i announced in my concur in rosenberg, i in this case because of the records of defect but in effect i support the First Amendment and free speech. When rosenberg died, cant do that one anymore. Explanationonal strikes me as plausible given what i have told you about brandeis and judicial restraint. It also strikes as potentially misleading and incomplete. Importantle of 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. , the case decided in 1925 decided famous for labored, twoot 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. 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 dont care that puny anonymity the whole characteristic of the people in abrams when he did that in that case, putting out with the gate the court would call propaganda. Those of us who are familiar with the 1940s and 1950s know that value laden term. It is twisted. It is dishonest and unamerican. It tells you you should not be eating apple pie. This one revealed what was going on. Many years later in dennis, the case,us 1950s red scare 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. If you think something is so evil you dont care it is never going to happen, you are 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 holmes and to wear 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 the law 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 inresumption, but he writes ways that says the question is whether or not the judgment that harm might occur is reasonable. 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 didnt mean very much. If you look at the cases meyer and pierce, they talk about reasonableness, 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 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 in the ways you want. Juries become a cause for concern. In a Remarkable Exchange of inters between two people 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. Concurrence first reason for all sorts of Important Reasons beyond the one brandeis proffered. The second reason, context is important in this area. About thel myth 1920s is we got deeper and 1920s,nto the roaring concerns of communism and germany and world war i were receding. The Russian Revolution was over. Was aecution of the czar 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. 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 judicial 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] 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 ring into me bo grow labor. October 22, 1926, the banner headlines, San Francisco examiner, third [indiscernible] , confesses four beaten with hammer in strike riots. , newonth before whitney york times, American Legion issued a report. Condemning radicalization of 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 organizations the organization concerned is identified with a parent body. Think moscow, whose aims and objects are undermining our form of government. 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 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 wont 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 that was union was our friend. After pearl harbor, the bridges 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. 1941, what was russia . It was about to become our trusted ally against nazi germany. And then the red scare. Important ines terms of shaping these decisions. What can we say about concurring opinions . There are other examples. Fletcher and whitney are the most fun. Their stellar examples of judicial craftsmanship, efforts to bring to the other competing ve ands and wea 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 which is. Witches. Tricksch begins doing rather strange that hopeful. Hurtful. They are pretty unpleasing. It is dangerous to gather flowers on the pit banks of hell. 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 meaning toto give 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] announcer 1 this is American History tv on cspan3, where each weekend we featured 48 hours of programs exploring our nations past. The house will be in order. Announcer 1 for 40 years he spent been providing coverage of congress, the white house, the Supreme Court and Public Policy events from washington, dc and around the country so you can make up your own mind. Created by cable, cspan is brought to you by your local cable or satellite provider. Your unfiltered view of government. Announcer 2 monday we are at the beginning of building out a smart city. We were fortunate early on to booths our old telephone , infrastructure into wifi kiosks. They are located across the city of new york area that in and of itself provides a means of communicating that sets out a predicate for what can be done with sensitive technology, how we can read it regulate lighting. There is so much that can be done from that platform alone. Announcer 2 new York Democratic congresswoman Yvette Clarke monday night 8 00 eastern on cspan two. Announcer 1 30 years ago on member nine, 1989, the berlin wall was reduced to a symbol of the cold war when the east German Government announced it was allowing free passage between the divided city. Next the wall, a 1962 u. S. Information agency short film that takes us back to witness the shock of berliners and the crisis caused by the Walls Construction in august of 1961