Fletcher, Whitney, and the Art of Disagreement

Abstract

Fletcher, Whitney, and the Art of Disagreement MARK R. KILLENBECK Justice William Johnson began his sep­ arate opinion in Fletcher v. Peck with a disarmingly simple statement: “In this case I entertain on two points, an opinion dif­ ferent from that which has been delivered by the court.”1 So he “threw out” certain ideas, making it clear that he did not ob­ ject to a Georgia statute because it vio­ lated the Contract Clause. Rather it was at odds with “the reason and nature of things: a principle which will impose laws even on the deity.”2 In a similar vein, Justice Louis D. Brandeis, “concurring” in Whitney v. California, delivered what is universally regarded as a devastating dissent—a paean to the “freedom to think as you will and to speak as you think”3—even as he allowed Charlotte Anita Whitney’s conviction to stand. These are the two most prominent ex­ amples of the art and science of being agreeably disagreeable, purporting to concur even as you write an opinion positing that your brethren simply do not have a clue. The equivalent, if you will, of Courtly Fighting Words, said with a judicially if not injudi­ cious “disarming smile.”4 Dissent—whatever its form—is as old as the Court itself.5 Very few likely realize that the first reported decision of the Court was actually a dissent. That “honor” fell to Justice Thomas Johnson, who as the juniorjustice in an era when the Court spoke seriatim chimed in first, with all of his brethren reaching the opposite result.6 A more notable and consequential early disagreement was voiced by Justice James Iredell in 1793, when, in Chisholm v. Georgia,1 he was the only one to conclude that Article III courts could not en­ tertain a suit filed against a state by a citizen ofanother state. That result—contradicted by the clear text8—led, of course, to the ratifica­ tion of the Eleventh Amendment, which has since spawned its own tale of movement and counter movement. Dissent has accordingly played an im­ portant role throughout the Court’s history. Chief Justice Charles Evans Hughes fa­ mously characterized dissents as “an appeal to the brooding spirit of the law, to the 114 JOURNAL OF SUPREME COURT HISTORY Thomas Johnson of Maryland was the original dissenter on the Supreme Court. As the junior justice he chimed in first in Georgia ir. Brailsford (1792); his brethren reached the opposite result. It was Johnson’s only recorded opinion during his fourteen-month tenure. intelligence of a future day.”9 Justice Robert H. Jackson, in turn, noted that dissents when “[w]isely used on well-chosen occasions ... ha[ve] been of great service to the profession and to the law.”10 That said, dissents have also proven controversial. This was especially so as William Johnson and Louis Brandeis crafted their opinions. Both John Marshall, the fourth Chief Justice of the United States, and William Howard Taft, its tenth, viewed dissents as at least a nuisance, even on occa­ sion a positive harm. Johnson and Brandeis knew this, and that reality provides one of the contexts we must explore as we look with care at their curious opinions in Fletcher and Whitney. Marshall, Johnson, and Dissent One of my many quirks is that I habitu­ ally think of John Marshall as the Accidental Chief Justice. Part of the story is familiar. John Jay refused to undertake a second stint as chief after John Adams sent his name to the Senate, which actually gave its “ad­ vice and consent.” Governor of New York at the time, Jay was both content in that role and dismissive, offering a candid and unfortunately highly accurate assessment of the Court: I left the Bench perfectly convinced that under a System so defective, [the Court] would not obtain the Energy weight and Dignity which are essential to its affording due sup­ port to the national Government; nor acquire the public Confidence and Respect, which, as the last Resort of the Justice of the nation, it should possess.11 Most narratives have Adams turning in­ evitably and immediately to John Marshall, bolstered by an account penned by Marshall...