The first lecture in this years series. This year, we are examining dissents opinions. Different aspects thereof. You have already been warned about your cell phones and your apple watches and so forth so i will not repeat that. But you will be in the doghouse 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 was able to come and introduce our speaker 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. Him for taking time away from his busy schedule on first day of term. To impose too much on his time so i will abbreviate the introduction of Justice Breyer. Francisco. In san he received an a. B. From stanford. Aba from mod lang college, oxford and an ll. B. From harvard. He served as a law clerk to Justice Arthur goldberg of the Supreme Court of the United States during the october 1964 term. Pursued aice breyer career of teaching and public service, president jimmy carter appointed him to the u. S. Court of appeals for the First Circuit in 1980. In 1994, president clinton nominated Justice Breyer as an associate justice of the Supreme Court to succeed harry blackmun. 1994. K his seat august 3, since joining the court, Justice Breyer has completed no less then a number of books including , making oury democracy work a judges rio. And most recently, the court and the world. With thanks and appreciation, i would ask you to welcome Justice Stephen breyer. [applause] Justice Breyer thank you. Very nice. And it is a children it is a theerman tradition to do introductions. A fabulous job at the aba come here and im glad you all are here because i was just hasing to my wife written a book as she is a clinical psychologist. She worked with danafarber and she worked and she wrote a book on what do you do when your child is very sick. She was talking at satan dudes in st. Judes in memphis. Room, andin that there were a lot of people in the room, they agreed that the single most valuable thing is exactly what probably everyone in Public Office in washington and elsewhere a great 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 come in fact come a long history of ups and downs but basically, it it is a Society Today that is democratic. It has human rights protected, not perfectly. It is a Diverse Society and that treats everyone as part of the group. We are part of that. The group oft of people really making an effort. And the Supreme CourtHistorical Society does that. So, of course, i would come and introduce whoever is speaking and they are always good. They always are and i always learn something. Tonight, we will learn about dissents. I did not always dissent. [laughter] quite often, i am in the majority. [laughter] isetimes, i dissent but this the first of the societys fourpart 2019 leon silverman lecture series and the subject is dissent. And the Supreme Court and new perspectives. I have seen what you are done over long periods of time with this organization. Keep doing it. Just keep doing it. This is just one example. They have teacher training programs. Civicse the high school teachers, publications. The title tonight is dissent fletcher versus whitney. The teacher is eminently qualified. He is the rising distinguished professor at the university of Arkansas School of law. He received his ba from boston and phd ins jd Higher Education administration from the university of nebraska and he is a life member of the law institute. He has written two books. Including the 10th amendment and state sovereignty constitutional history and history. Ary he has published widely on the Supreme Court and the constitution and he has spoken twice in front of this audience. There is a demand that he comes back. Honor that the society wants you to return. Please join me in welcoming professor killenbeck. [applause] killenbeck thank you for that gracious introduction and for taking the time from a busy first monday. I did not realize until we were downstairs that on october 7, 1935, 84 years ago, the first monday of the first term that the court spent in this building there is a certain degree of resonance and it is quite humbling to be here. I want to thank the society for the invitation and in particular jennifer who is the driving force behind these things. It is just 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 will be the main part of this. Justice johnson and his opinion in fletcher v peck, decided in 1810. Justice brandeis and Justice Holmes. They are two of the most prominent examples of something disagreeablye agreeable. 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 that the very first reported opinion of the court by an obscure justice, thomas johnson, said no one has served on the court with least distinction and impact. The first recorded written opinion of the court was a dissent which he got to deliver as a first opinion because they announcedeach justice and he was the junior justice and then got to sit there and listen to every other member of the court telling him he was wrong. Justice had a more consequential dissent. One out of five saying that 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 chisholm that produced the 11th amendment. We wont go any further with that one. Context is very important to what im about to talk about tonight. And in particular, context under which John Marshall king chief justice of the United States. Yth surrounding each of chief Justice Marshall is that john jay sent his infamous letter to president adams after he had already been nominated and confirmed within which he depicted the court as follows i left the bench perfectly content that under systems so defective which are essential to affording it do support to a national government. It requires Public Confidence and respect. And he declined. Complex in motion a sequence of events in which John Marshall was not the end of it will nominate. President adams was determined to elevate a sitting member of the court. , his firstat cushing choice, would decline because he wanted to nominate patterson. He had his son working for four weeks in philadelphia to convince Jerry Ingersoll to accept the seat that would be vacated if one of the sitting justices were elevated. I have a habit of referencing John Marshall as the accidental chief justice. Said, he took the judicial bit between his teeth and had two missions. The first of those was to gainsay john jay and give the it deservedsition to have as a coequal branch of government. He announced that with great resolve and affect in 1803 at margaret ursus madison. Marbury versus madison. The second was to take sure that the court was treated with respect by encouraging it to speak with one voice. Shortly after mccullough was decided in 1819, he engaged with the debate, marshall talked about dissent. The course of every tribunal was be that the opinion which is to be delivered as the opinion of the court is previously submitted to the consideration of the judges. And in every part of the reasoning be disproved, it must be modified to receive the approbation of all before it can be delivered as the opinion of all. Marshall was dedicated to the a of no more syria adam into this peaceful little habitat came William Johnson. Jeffersons first appointment to the court and 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, who was not John Marshall. His distant cousin who he quite frankly despised. The two was aween on. Ve from the 1790s 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. Nothing could be better done than to make him a judge. That wish became true much to jeffersons chagrin. Be, the theory was going to 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 secretary of treasury gallatin and his name was sent to the senate and he was confirmed. James madison sent him a letter saying congratulations will you accept . No Due Diligence was undertaken and they were unaware of the fact that johnson, while on the South Carolina court, authored an opinion that if it had come to light would have given at least gastric distress if not downright apoplexy to Thomas Jefferson. Why . He did in that opinion two things that were anathema. He recognized the heresy as it was put of implied powers and he 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. He was our first stealth nominee. Allerton and jefferson thought they had put a jeffersonian cap among the federalist canaries. They were going to be greatly disappointed. Johnson carved out a record during his tenure on the court all ofort for virtually the named positions embraced by John Marshall. This was not because John Marshalls legendary persuasive powers. It was because if you look at , thatt johnsons record indication was already there. Now, a couple of other important things. First, johnson joined the court after mark berry. 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 the burr conspiracy where johnson in fact did dissent but not on a constitutional basis. In 1810, fletcher versus peck presented the first opportunity for johnson to speak out in an area near and dear to jeffersons part. Heart. This was compounded by another development. In 1808, the treasured task which will not johnson issued an opinion with regard to the jeffersonian embargo where johnson took a position that countermanded the direct command from jefferson. This gave rise to an incredible dialogue. He delivered a little lecture, even president are subject to and should respond to the law. Jefferson was outraged. He had his attorney general right a letter to all the court collectors in the country. There was an exchange of views like the post mccullough exchange which was published in the opinion johnson issued. When fletcher arrives, he is not one of the in crowd. He is the enemy. He has got a problem. He wants to be true to his own principles. He wants to be true to the things he had embraced as part of the John Marshall project. He also wants to appeal to his patron, Thomas Jefferson. How does he walk the line . Fletcher versus peck is renowned for three things. The notion of a state statute can set up something that is contract similar to the contract clause, even though it is not a private agreement. The traditional commonlaw understanding. Fletcher is the first time the Supreme Court declared a state law unconstitutional. Third, the johnson concur. The first two are wrong. What of the first opinions johnson participated, it was a case where anticipating fletcher, John Marshall held a state statute could in fact create a contract and be subject to contract laws interpretation clause interpretation. United states versus peters, John Marshall again, a state law is unconstitutional. The first two about fletcher, been there, done that. They are simply not true. What is true is johnson wrote an opinion in which he said i wholeheartedly agree with the court, this measure is unconstitutional. The parameters of fletcher i wont go in to. They are vaguely familiar to 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. When it arrives and the court, it is a cause celebre. Johnson issues the opinion where he says i agree, unconstitutional, not however because it violates the contract clause. Rather because it violates natural law, which he said binds even the deity. More on that in a bit. Why did he do this . It is because of the context 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 Macola Macola where the Supreme Court recognized implied powers. Johnson carved out a position with regard to the powers that were granted that was in some instances more robust than with John Marshall. Fletcher gives him the opportunity to simultaneously agree and disagree with John Marshall and use that on natural law, one of Thomas Jeffersons 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 vacation twistifications and distortion of the constitution. Johnson gave an explanation which is not credible. He wanted to talk about the difference between the obligation of contract and the regulation. Problems with that it is quite frankly they make place quibble. First in a fletcher, marshall expressly said the states may regulate. Two years later in a companion case he said it more elaborately than in 1827 in his only dissent, marshall talked about no inconsistency between the normal regulation of contract and the notion of the contract clause and the extinguishment, the revocation of a agreement. The superficial explanation is a placeholder. The true explanation is his attempt to try and walk this fine line, to find a way to be true to his principles which were a blend of robust marshall nationalism and a respect for states rights. To do it in the light of all sorts of opinions given versus ogden, johnson concurs again writing an opinion where he does a couple of things. One of them is to say, excuse me, one of the reasons we have a clause is because the states were bad actors. The states caused this problem. That is jeffersonian heresy. It then goes on to say i think the federal power over congress is exclusive, an issue John Marshall docked ducked. Many years later it was different. Johnson is walking a fine line. He is trying to keep us from having this heresy of constitutional obstruction, relying on natural law which after all if natural law binds the deity, perhaps it might bind John Marshall a mere mortal. This brings us to whitney. Whitney is another one of those warhorses in the constitutional curriculum. The facts are well known. Charlotte Anita Whitney was the psion of a family descended from the mayflower. She was a woman of sophistication and intelligence, which will haunt her. She got a College Degree and did social work in new york city and did a large amount of charitable work in california and became very sensitive to the plight of the working person to the problems caused by poverty during the progressive era, where respect for individual rights was just barely beginning to emerge. She becomes a member of the communist labor party of california. She attends a meeting of that group in november 1919. She signs of a resolution saying we are committed to preschool peaceful 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 Whitn