Vanderbilt Law Review

First Page



The conventional wisdom is that Justice William Johnson, Jr., was the "the first dissenter." This is not literally true. The first published opinion of the Court was Georgia v. Brailsford, in which each member of the Court expressed his views seriatim. Ironically, the first to speak was the first Justice Johnson, Thomas of Maryland, whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: the first published set of opinions, the first split decision, and the first dissent.

It was the "other" Justice Johnson, William of South Carolina, who earned the reputation as the first persistently independent voice on the Court. Johnson was nominated by President Thomas Jefferson in 1804 and served for thirty years until his death in 1834. The statistics suggest that Johnson earned his reputation as the first true contrarian. He wrote over 160 opinions, close to one-third of which were either concurrences (ten) or dissents (thirty-eight). This high ratio set Johnson apart from his brethren, as the next highest number of recorded separate opinions on the Marshall Court was nine, which were lodged by Joseph Story.

I confess that it was Johnson's pronounced independence that prompted me to select him as my subject. When John G. Roberts, Jr., was in the midst of his second Term as Chief Justice of the United States Supreme Court, having succeeded his mentor William H. Rehnquist, the new Chief Justice made it clear that one of his goals was to promote unanimity on the bench, observing: "I think that every [Jiustice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as an institution." Roberts gleaned that imperative from the record of the only individual to become Chief Justice at a younger age than he.