And early 20th century. Good evening, ladies and gentlemen, im from atlanta and i currently serve as president of the Supreme CourtHistorical Society. Im pleased to welcome you to the first lecture in this years silverman series. This year we are examining dissents not majority opinions. A different aspect thereof. Youve already been warned about your cell phones and apple watches and so forth. So i wont repeat that. But you will be in the dog house if it goes off during the period of our evening. I also want to thank this evening our host Justice Stephen breyer who against all odds agreed to come and introduce our speaker this evening on the first day of a busy term. Justice breyer is one of the most faithful friends of the society. Whenever we have called on him to help us out he has shown up and done a wonderful job. I want to thank him for taking time away from his busy schedule on first day of term. I dont want to impose too much on Justice Breyers time so im going to abbreviate the introduction. He was born in san francisco. He received an a. B. From stanford, a b. A. From oxford, and an l. L. B. From harvard. He served as a law clerk to Justice Goldberg of the Supreme Court of the United States during the october, 1964 term. After Justice Breyer pursued a career of teaching and Public Service president jimmy carter appointed him to the court of appeals for the First Circuit in 1980. In 1994 president clinton nominated Justice Breyer as an associate justice of the Supreme Court. He took his seat august 3rd, 1994. Since joining the court Justice Breyer has completed no less than a number of books, including active liberty, interpreting our democratic constitution, making our democracy work, a judges view, and 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 Stephen breyer. [ applause ] thank you. It is a silverman tradition to introduce the introducer. Jill has done a fabulous job at the aba, here, and im glad youre all here because what you do, i was just talking to my wife who has written a book, she is a clinical psychologist and she worked at dana farber and just wrote a book on what you do if your child is very sick. It is very helpful to a small group of people. She was talking about it at st. Judes in memphis. I couldnt resist talking about one midwife books. Not to st. Judes but to the law students. Everybody in that room, and there were a lot of people in the room, they agreed that the single most valuable thing is exactly what probably everybody in Public Office and most who arent in washington and elsewhere agree is the most important thing to do. To somehow get the word out to the next generation that we do have a history. That we are a democracy. That we do have in fact a long history of ups and downs but basically it is a soes side today that is democratic, that has 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. Youre part of that. You are part of the group of people really making an effort. And the Supreme CourtHistorical Society does that and so i would come and introduce whoever is speaking and they always are, i always learn something, tonight well learn about dissents. I dont always dissent. [ laughter ] quite often im in the majority. They dont pick that up. Sometimes i dissent. This is the first of the societys fourpart, 29team leon silverman lecture series and the subject is dissent and the Supreme Court in new perspectives. Ive seen what youve done over long periods of time this organization. Keep doing it. Just keep doing it. This is just one example. They have teacher training programs, you have the High School Civics teachers, you have publications, Supreme Court history. Now, title tonight is dissent, a concurrence as a dissent, the speaker is eminently qualified. Its professor Mark Killenbeck the wiley h. Davis distinguished professor at the university of Arkansas School of law. He received his b. A. From boston college, his j. D. And ph. D in Higher Education administration from the university of nebraska. He is a life member of the american law institute. He has written two related books, mccullough v. Maryland securing a nation 2006 and the 10th amendment and state sovereignty, constitutional history and contemporary issues. That is an older book, 2002. Hes published widely on the Supreme Court the constitution and he has spoken twice before to this audience. So there is demand that he come back and it is very good. It is a badge of honor the society wants you to return. Please join me in welcoming professor killenbeck. Thank you for that gracious introduction, Justice Breyer and for taking the time from a busy first monday. I did not realize until we were down stairs that on october 7th, 193584 odd years ago the first monday of the first term that the court spent in this building so there is a certain degree of resonance and it is quite humbling to be here. I want to thank the society for the invitation. I want to thank in particular Jennifer Lowe who is the driving force behind these things. It is a great honor and privilege to be here. The subject tonight is the oddity of opinions styled as concurrences that actually turn out to read much like dissents. Two prominent examples are going to be the main part of this. Justice johnson and his opinion in fletcher v. Peck, decided in 1810. Justice brandeis joined by Justice Holmes in 1927. They are two of the most prominent examples of something i 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 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 each justice announced he was the junior justice and then got to sit and listen to every other member of the court tell him he was wrong. The next, this was 1792, the next year a more consequential dissent, one out of five saying in spite of the clear text of the constitution you could not bring a suit as a private citizen against the state of georgia. The case was chisolm and produced the 11th amendment. We wont go any further with that particular one. Now, context is very important to what i am about to talk about tonight. In particular context under which John Marshall became chief justice of the United States. The myth surrounding 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 i left under a system so defective the court would not entertain the energy, weight, and dignity essential to affording it due support to the National Government nor acquire Public Confidence and respect which as the last resort of justice of the nation it should possess. And he declined. This set in motion a complex sequence of events within which John Marshall was not the inevitable nominee. President adams was determined to elevate a sitting member of the court. He hoped that cushing 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 Ingersoll to accept the seat that would be vacated if one of the sitting justices were elevated. So i have a habit of referring to John Marshall as the accidental chief justice. That said he took the judicial bit between his teeth and 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. As everyone knows, he announced that with great result and effect in 1803 in marbury versus madison. The second was to ensure that the court was treated with respect by encouraging it to speak with a single voice. Shortly after mccullough was decided and he engaged in his debate, marshall talked about dissent. The course of every tribunal must necessarily be the opinion which is to be delivered as the opinion of the court is previously submitted to the consideration of the judges, and if any part of the reasoning be disproved, it must be modified as to receive the approbation of all before it can be delivered as the opinion of all. Marshall was dedicated to the idea of no more seriatum opinions of having the court speak with a single voice. Into this peaceful little habitat came William Johnson. Jeffersons first appointment to the court. 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 not John Marshall his distant cousin whom he quite frankly despised. The enmity between the two was a light motif from the 1790s on indeed in a strangely prophetic letter to James Madison in 1790 he complained about marshall and said we need to find Something Better to do with him to get him out of the way. Quote, nothing could be better done than to make him a judge. That wish became true much to jeffersons chagrin. Now, the theory was going to be that William Johnson was going to be an Ardent Supporter of the jeffersonian approach to things. One small problem. They selected him on the recommendation of the secretary of treasury. His name was sent to the senate. He was confirmed. James madison sent him a letter saying congratulations. Would you accept . A rather strange pattern in those days. No Due Diligence was undertaken and they were unaware of the fact that johnson while on the South Carolina court authored an opinion which if it had come to light would have given at least gastric distress if not down right appoplexy to Thomas Jefferson. Why . Because in that opinion he did two things that were anethma. He recognized the heresy and recognized the constitutionality of the bank of the United States. This is why i refer to William Johnson as, i hate this term because i dont think there is any truth to it, but people like to talk about stealth nominees. This was our first stealth nominee. Gallaton and jefferson thought they 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 is not because John Marshalls legendary persuasive powers. It was because if you looked with care at johnsons 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. Between marbury and 1810 there were few if any cases that came to the court that were going to arouse jeffersons ire. Probably the single most important exception were the cases coming out of the burr conspiracy ex parte bowman where johnson in fact did dissent but not on a constitutional basis. So in 1810, fletcher v. Peck, presented the first opportunity for johnson to speak out in an area near and dear to jeffersons heart. Now, this was compounded by another development. In 1808 sitting on the bench riding the circuits a treasured task that will not be brought back one trusts, johnson issued an opinion with regard to the jeffersonian embargo where johnson took a position that counter mann countermanded a direct order from jefferson. He gave a little lecture even president s should understand and respond to the law. Jefferson was outraged and had his attorney general write a letter to all port collectors in the country. There was an exchange of views much like the post mccullough exchange all of which was published in the opinion that johnson issued. So when fletcher arrives at the court in 1810, hes not one of the in crowd. He is the enemy. Hes got a problem. That problem is threefold. 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 set up something that is a contract subject to the contract clause. Even though it is not a private agreement the traditional common law understanding of contract. Second, fletcher is the first time the Supreme Court declared a state law unconstitutional. Third, the johnson concurred. The first two are simply rong. One of the very first opinions that johnson participated was a case where anticipating fletcher John Marshall held that a state statute could in fact create a contract and could in fact be subject to contract clause interpretation. One year before fletcher, United States versus peters. John marshall again. A state law is unconstitutional. The first two myths about fletcher, been there, done that. Theyre simply not true. What is true is that johnson wrote an opinion within which he said, i whole heartedly agree with the court. This measure is unconstitutional. Now, the parameters of fletcher i wont go into detail. They are vaguely familiar to most of us. Fletcher as war horse. Its in every common law case book albeit only brief mention. Im unaware of any case book that actually extracts the whole opinion. Johnson said, i agree that this measure is unconstitutional. Georgia legislature had done all sorts of hideous things, the 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 it arrives at the court it is a cause celeb 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 deity. More of that in just a bit. Now, why did he do this . I think its because of the context that ive 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 mccullough where the Supreme Court recognized implied powers. Johnson carved out a position with regard to the powers 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 Jeffersons 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. What does johnson do . He pins his opinion on natural law. Not on what Thomas Jefferson called twisted 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. A couple problems with that theory on the part of johnson. I think quite frankly it is just a makeplace quibble. First, in fletcher, marshall expressly said, states may regulate. Two years later, in a companion case, he said it more elaborately. Then in 1827 in his only constitutional dissent, marshall at length talked about no inconsistenciy between the normal regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a contractual agreement. I think johnsons superficial explanation is a placeholder. The true explanation to me is his attempt to try and walk this fine line, to find a way to be true to his principles, which were a blend of robust marshall nationalism and a certain respect for state rights. But to do it in the light of all sorts of opinions, so in gibbons, johnson concurs yet again, writing an opinion within which he does a couple interesting things. One of them is to say, excuse me. I think one of the reasons why we have a Commerce Clause is because the states were such bad actors. And so he says the states caused this problem. Thats jeffersonian heresy. He then goes on in that same opinion to say, i think the federal power over commerce is exclusive, an issue that John Marshall ducked in his opinion for the court that was ultimately resolved against johnson many years later in a taney court decision. So johnson is walking a very fine line. He is trying to keep us from having this heresy of constitutional obstruction, relying on natural law, which, after all, if natural law binds the deity, 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. Its the facts are well known. Charlotte Anita Whitney was a scion of a very prominent california family, descended from the may flower. She was referred to as a woman of sophistication and intelligence, which is going to come back to haunt her. She got a college degree. Shea did social work in new york city. She 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, 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, were committed to peaceful change. But none of that mattered because the Supreme Court of california had already decided you all know whats coming, communism is truly and totally evil. Indeed, the link between the communist labor party of california and the Industrial Workers of the world, one of the most despised groups by 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, shes 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 brandyce 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 of justice brandyce that is worth noting and that is he believed and he said this in his opinion there were procedural defects in the record below. The attorney 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 a very fact bound inquiry and on the record below, there was evidence that was given to the judge and the jury that could support the conviction. And on that basis we cannot overturn this verdict. Now, he did this in an opinion and its famous that reads like a primer on why free speech is important, why the First Amendment is a center piece in american democracy. Freedom to think as you will and to speak as you think are a means indispensable in value and to the discovery and spread of political truth. Without free speech and Assembly Discussion would be futile. With them, discussion afford adequate protection against the dissemination of noxious doctrine. The greatest menace to freedom is inert people. Public discussions a political duty. That should be a fundamental principle of the american government. Then in the lines that everybody remembers, fear of serious injury cannot alone justify suppression of free speech and assembling. Men feared witches and burnt women. It is the function of speech to free men from their heritage excuse me from the bondage of irrational fears. The fact that the legislature had determined that 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. Now, what was that test . In 1919, Justice Holmes in the shank case articulated what we know as 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 the right to prevent. He amplified that in a couple of companion cases. And that arguably was the standard that was in place. Now, brandyce had a well developed reputation as a progressive. As someone who supported innovation. As someone who believed in fostering the rights of individuals. Brandyce also had a well deserved reputation as someone who believed in judicial caution. For example, in his dissent in one 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 shouldnt act in the way that the court did 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 the laboratories of democracy case, etcetera. Now, a little known fact about whitney is it was actually in the concurrence that he actually prepared what amounted to the whitney concurrence for issuance in a prior case. Ruthenberg vs. Michigan. Ruthenberg did the same thing Charlotte Whitney did. He joined the communist party, attended a meeting, unfortunately in michigan where they were less tolerant than the good people of california. He had a second misfortune. He died before his case was resolved. Oral argument was held. Brandeis prepared his dissent for that case. Then he prepared a little twopage concurrence for whitney saying for the reasons i announced in my dissent in ruthenberg decided today i concur in this case because of the record of defect but in effect i support the First Amendment and the free speech. Well, when ruthenberg died, that went poof. You cant do that anymore. Now, this traditional explanation strikes me as plausible given what ive told you about brandeis and judicial restraint but also strikes me as potentially very misleading and very incomplete for a couple of very Important Reasons. One of them is it 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, in a 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 where page upon page upon page is consumed in an attempt to justify incorporation, the court said new yorks statute is subject to the free speech proscription but also did Something Like toto pulling the curtain on the wizard of oz and revealed what it was really thinking. Remember when i told you certain word in certain circumstances . In gitlow the court made it absolutely clear what it meant by certain words and point blank said there are certain things which by their very nature when they are discussed pose a risk that society cannot tolerate. In other words, its the doctrine. Its not the statement. Its not the usage. We dont care that poor and puny a anonymities were putting out what the court would routinely call in the 20s propaganda. Now, those of us familiar with the 1940s and the 1950s and the red scare know what a value laden term the word propaganda is. Its twisted, dishonest, unamerican. It tells you you shouldnt be eating apple pie or wrapping yourself in the American Flag because of course good americans would never do that. Gitlow reveals what is really going on. Indeed, many years later in 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 dont care that its never going to happen. Youre going to go after it. And it wasnt until 1969 in 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 brandeis and whitney wanted to take it. I. E. , 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 ak unlawful activity will occur. That was the breakthrough and has been the doctrine ever since. Brandeis never mentions gitlow. He never discusses this crucial gloss on clear and present danger in his whitney opinion. He writes it in ways that say we have a rebuttable presumption but he also writes it in ways that says the question is whether or not the judgment that harm maight occur is reasonable. Whitney does refer to free speech as a fundamental right. But what we have to remember when we read that passage in whitney with the blessings of hindsight is that in 1927 that didnt mean very much. If you look at the cases, meyer and pierce, they talk about reasonableness, about deference. Its not until footnote 4 of carolling products amplified by the decisions in its wake that we begin to give fundamental rights proburobust protection. So the whitney concurrence still says reasonable problem. It is one thing for the Supreme Court to write a rule. Its another thing to be able to trust the judicial machinery below to implement it in the ways that you want. Judges and juries become a cause for concern. Indeed, in a Remarkable Exchange of letters between learned hand and oliver wendall holmes, 19191920, judge hand points out the problem with juries and their herd mentality and their ability to be deeply influenced by the ebb and flow of current events. And so i think there is a respectable argument that brandeis was aware of this problem and was reluctant to take that next necessary step especially in a case fraught with procedural difficulties. Yes, the whitney concurrence has been described as the model of what a dissent can be. Naum rou numerous others adopted that same line. I think it was a concurrence first reason for all sorts of very Important Reasons beyond the one that brandeis proffered. Second reason, context is extraordinarily important in this area. The general myth about the 1920s as we got, 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 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 verneer belied a continuing antipathy that was 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 thuggery. Totally sobering article. I commend it to people. It is published in the illinois law review. It is 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 conservativism. 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 elimosery institution. I. E. What is all this new deal stuff . It aint what this government ought to be doing. Couple that with what you see if you look in the newspapers of the time. January 22nd, 1926, new york times. Communists were boring into, like worms or something, negro labor directed by the communist internationale in moscow as part of its worldwide propaganda. October 22nd, 1926. Banner headlines. San francisco examiner. Third terror thug caught. Confesses. Four beaten with hammer in strike riots. April 18th, 1927 one month before whitney. New york times. The American Legion 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 is that true when there is so great a presumption that the organization concerned is identified with a parent body. Think moscow. Whose aims and objects are undermining our form of government. Early 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 formally adopted them. Even 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 surely aware of this. They were surely aware of the risks posed by a public fixation that continued to typify these kinds of movements as totally anathema to the american way of life. Again, the judge hand quote i referred to earlier. All i say is that since cases actually occur when men are excited, and since juries are especially clannish, it is very questionable whether the test of motive i. E. What is your motive is not a dangerous test. Juries wont much regard the difference between the probable result of the words and the purposes of the utterer. In any case, unless one is rather set in conformity, it will serve to 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 effectively overturned the notion that simply being a member of a party was enough to get a conviction. Of course in 1937, the ravages of the Great Depression were fading. Stalin was busy destroying his own government. Roosevelt was promulgating policies that made it look like the soviet union was our friend. In 1941, the day after pearl harbor, the bridges case, a contempt citation. 54 decision. The court did what holmes wanted to do in abram and what brandeis talked about in whitney. It said, the clear and present danger must be objectively clear and really present. But of course in december of 1941, what was russia . It was about to become our trusted ally in the great cruise aid against nazi germany. Then we go to the 1950s, the red scare in dennis. Context becomes extraordinarily important in terms of shaping these kinds of decisions. So what can we say about concurring opinions . There are other examples. Fletcher and whitney are simply the most fun. They are to my way of thinking stellar examples of judicial craftsmanship, efforts to bring together competing strands of law and fact and weave an explanation that balances divergent needs and interests. For johnson, the goal was to meet the demands of multiple masters even as he remained true to his principles. Brandeis sought to give effect to his abiding sense of the need for 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 remind me of a 19th century work by a gentleman named thomas fuller, who was discussing witches. The witch begins at first with doing tricks rather strange than hurtful. Aye, some of them are pretty and pleasing. But it is dangerous to gather flowers that grow on the banks of the pit of hell for fear of falling in. They which play with the devils rattles will be brought by degrees to wield his sword. And from making of sport they come to doing of mischief. 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 ] youre watching a special edition of American History tv. Airing now during the week while members of congress are working in their districts because of the pandemic. Tonight at 8 00 eastern, the Virginia Museum of history and the university of Oklahoma Center for the study of American Indian law cohosted a symposium on chief justice John Marshall and the Supreme Courts decisions in cases involving the forced relocation of the cherokee nation. American history tv now and also watch over the weekend on cspan 3. While the coronavirus pandemic is having an impact on the congressional schedule, House Majority leader steny hoyer announced members will not be back for legislative business until monday, may 4th, and Senate Majority leader Mitch Mcconnell has announced the same. Thats two weeks after the chamber was originally scheduled to return. Furthermore, members have been advised they would have sufficient notice about returning to capitol hill if legislation related to the coronavirus was to be considered before may 4th. Watch live coverage of the house on cspan, see the senate on cspan 2. And now on American History tv, yale law professor justin driver on the southern manifesto, a 1956 document bystrom thurmond and other segregationists outlining their plans to evade the 1954 sup