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