No Bed of Roses: William Johnson, Thomas Jefferson and the Supreme Court, 1822–23

Abstract

No Bed of Roses: William Johnson, Thomas Jefferson and the Supreme Court, 1822-23 MARK R. KILLENBECK On December 10, 1822, Justice William Johnson sent a remarkable letter to the indi­ vidual who placed him on the Supreme Court, Thomas Jefferson. Over the course oftwentyone pages, Johnson laid bare his soul, dis­ cussing at length his trials and triumphs on the Court and numerous important, often deeply personal issues ofthe day. Itis an extraordinary document, both for what it reveals about its au­ thor and for the part it played in an extended exchange between Johnson and Jefferson in a series of letters sent and received between October 27, 1822 and August 11, 1823. William Johnson has been styled as the “First Dissenter.”1 The label fits the man. But Johnson was more than simply a habitual, al­ beit appealing, contrarian.2 He served on the Court from May 7,1804 until his death on Au­ gust 4,1834, a thirty-year period that included virtually all ofthe key years, and decisions, of the Marshall Court. Johnson was the first of the three individuals Jefferson placed on the Court.3 He was also arguably the most impor­ tant of them, the one Jefferson hoped would begin a process of changing the Court, from a “subtle corps of sappers and miners con­ stantly working under ground to undermine the foundations of our federated fabric,”4 to one composed of “Republican[s]... of suffi­ cient talents to be useful.”5 That did not happen. Johnson would, by and large, align himselfwith John Marshall in a series of decisions that infuriated the man Marshall subsequently derided as “the great Lama of the mountains.”6 Indeed, as I have argued elsewhere,7 perhaps the most strik­ ing thing about Johnson’s tenure is not what he wrote, either for the Court or in dissent, but what he did not say as the Court issued a series of opinions Jefferson claimed made “the constitution ... a mere thing of wax in the hands of the judiciary, which they may twist, and shape in any form they please.”8 Those opinions, and the manner in which they were delivered, played a significant role in the tenor and content of the exchanges between 96 JOURNAL OF SUPREME COURT HISTORY Jefferson and Johnson, within which the Sage of Monticello waged one last battle for the heart and mind of a man he had never actu­ ally met when he elevated him to the nation’s highest tribunal. The December 10th letter has gained a certain degree ofnotoriety. Numerous authors have quotedJohnson’s declaration thathis time on the Court “has not been a ‘Bed ofRoses,”’9 his claims about his role in changing the man­ ner in which the Court issued its opinions,10 and, in particular, his biting comments about his fellow Justices: that “Cushing was incom­ petent, Chase could not be got to think or write—Patterson was a slow man & willingly declined the trouble, & the other two judges [Marshall and Washington] you know are com­ monly estimated as one judge.”11 But the full text ofthe December 10th letter has never been printed, a startling omission given its content and importance.12 That oversight will presumably be recti­ fied with the eventual publication of the vol­ ume in the Jefferson Papers Retirement Series dealing with the years 1822 and 1823.13 In the interim, it seemed appropriate to provide both a transcript ofthe letter and a briefdiscussion of why it merits our attention. There are two principal reasons for this. First, it is important to place those portions of the December 10th letter that have been quoted in the wider con­ texts offered by its full text and the sequence ofletters within which it appeared. Second, the full letter is well worth considering on its own merits, both for what it says about the events and controversies of the period and the lives and views of its author and recipient.§ William Johnson, Jr. was educated at Princeton and read law under the tutelage of Charles Cotesworth Pinckney in his home city, Charleston, South Carolina.14 Johnson was by all accounts an intelligent and able individual, “a man ofconsiderable...