In October 1822, President Thomas Jefferson urged Justice William Johnson to take the lead in reinstituting the Jay-Ellsworth Court's practice of issuing seriatim opinions. He extolled the English preference for documenting each judge's reasoning on the issues before the Court and deplored its recent abandonment under the influence of Lord Mansfield. Justifying his own silent acquiescence in opinions of the Marshall Court, Johnson pointed to the situation when he joined the U.S. Supreme Court in 1804. He recalled that "Cushing was incompetent. Chase could not be got to think or write-Patterson [sic] was a slow man and willingly declined the trouble, and the other two judges you know are commonly estimated as one judge." Johnson's biographer Donald Morgan indicates that Justice Johnson was referring to Chief Justice Marshall and Justice Bushrod Washington as those Justices understood. to act as one judge. Yet Morgan also asserts that these two members of the Court, despite their twinning in the public mind, were in Johnson's view those most entitled to respect among all of his other colleagues.
We need to rethink Justice Johnson's identification of Marshall and Washington as "one judge," which arose presumably because of their parallel approaches to law and the Constitution. This analysis is important for two reasons: (1) Bushrod Washington's record needs to be reexamined before his habitual silence condemns him to eternal oblivion as Chief Justice Marshall's shadow, and (2) closer attention to Justice Washington's activities provides a clearer understanding of the role a single Justice played within the internal dynamics of the Marshall Court.
62 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol62/iss2/5