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