The Practice of Dissent in the Early Court

Before John Marshall became Chief Justice in 1801, the Supreme Court followed the custom of English appellate courts of issuing opinions “seriatim” whereby each justice filed his own separate opinion in a case. This led to confusion as the overall result had to be pieced together after each opinion was read. Moreover, sometimes there were different legal rationales for a decision. The Court’s rulings were supposed to carry the same weight as congressional legislation, but without one clear majority opinion it was difficult to know which holding should be enforced. Accordingly, no dissenting opinions were issued in the first decade of the Court because there was no majority opinion to dissent from.

Although Marshall’s predecessor, Chief Justice Oliver Ellsworth, had tried to move toward using a single “Opinion of the Court,” Marshall was more successful in persuading his brethren to institutionalize the practice. Routinely issuing unified opinions enhanced the Court’s power, clarified its rulings, and prevented its internal differences from being made public. For the first decade of the Marshall Court, the Justices spoke with one voice: as the most senior Justice, that voice was often Marshall’s as he wrote most of the opinions. The Court’s unanimous decisions thus reflected Marshall’s pro-Federalist views. This approach increased the importance of bargaining and persuasion among the justices in Conference.

Marshall’s dominance infuriated Presidents Thomas Jefferson and James Madison, both Democratic-Republicans, because it continued long after they appointed new Justices to the Supreme Court who came to constitute a majority. In 1804, Jefferson appointed William Johnson of South Carolina with the hope that he would challenge Marshall. While Johnson fought to have his ideas taken seriously in Conference, Marshall usually framed the discussion of a case in a way that was very persuasive to the other Associate Justices. At age 32, Johnson was younger than his colleagues, who thought he was both hot tempered and disrespectful of his elders’ wisdom. Nonetheless, Johnson eventually succeeded in convincing the Chief Justice to allow others to voice and print their opinions. For example, a year after his appointment, Johnson wrote the Court’s first formal dissenting opinion in Huidekoper’s Lessee v. Douglas (1805), publishing a written opinion that disagreed with the majority decision. Justice Johnson not only established a formal method of dissent in Supreme Court procedure but would author about half the dissents issued during his tenure (1804-1834).

While some Justices worried that publicly airing the Court’s differences about the law would weaken the institution, the Supreme Court’s power only increased. By 1812 dissenting and concurring opinions were issued regularly, but the conservative nationalism of the Marshall Court continued to solidify. Moreover, Johnson ended up disappointing Jefferson by becoming more conciliatory to Marshall’s vision of a strong federal government. In Marshall’s 34 years as Chief Justice, the Court issued 1,129 opinions: only 87 were not unanimous. By the end of his career on the bench, even Chief Justice Marshall issued his own dissents, expressing alternative legal rationales than those expressed in a majority opinion, that influenced legal minds after his time.

Since the Marshall Court era, separate dissenting and concurring opinions have become more frequent. Dissents play an important role within the judicial system. A Justice voicing, drafting, and publishing their disagreement with the majority opinion may be able to persuade other justices to join their dissent. Providing an alternative analysis of a case allows for flaws in the majority opinion to be recognized and forces the majority to rationalize their decision further. The discussion between Justices of both the majority and dissenting side of a case can provide clearer published opinions that can be used in the future to maintain or change an established precedent.