Seriatim: The Supreme Court before John Marshall

Abstract

Seriatim: The Supreme Court Before John Marshall Edited by Scott Douglas Gerber. (New York: New York University Press, 1998. Pp. xi, 362. $50.00.) The custom of English appellate courts was that participating judges wrote and delivered orally individual opinions in cases before the court. This practice, known as opinion writing, was adopted in early American appellate courts, including the United States Supreme Court. John Marshall thought the authority of the Supreme Court would be enhanced if it spoke with one voice, so the practice was abandoned early in his tenure as chief justice. Seriatim was appropriately selected the title for this useful collection of essays on Supreme Court justices appointed before Marshall's ascendancy to the high court. The title underscores that, before Marshall's appointment, the justices almost always spoke as individuals. The demise of seriatim opinion writing meant that the contributions of individual justices were difficult, if not impossible, to discern (20). This volume covers a much-neglected chapter of American judicial history and effectively dispels the notion that the Court made few substantive contributions to American law and politics prior to Marshall. The collected essays explore the constitutional and political thought of ten Supreme Court justices in the Court's first decade. With the exceptions of Thomas Johnson and Alfred Moore, a chapter is devoted to each justice who served prior to Marshall. Each chapter includes a brief biographical sketch and outlines the main contours of the profiled justice's political and judicial philosophy. A superb company of senior and junior scholars, representing the disciplines of history, law, and political science, contributed to the volume. Among the contributors are leading historians of the American judiciary and authorities on the profiled judges. Although the chapters are similarly structured, diverse disciplinary perspectives and methodological approaches are reflected in the collected essays. Seriatim: The Supreme Court Before John Marshall is as much about the founding of the American Republic in general as it is about the creation of judicial institutions in particular. Several profiled justices, such as James Wilson, William Paterson, and Oliver Ellsworth, were founding fathers both of the Republic-its political charters and institutions-and of the federal judiciary. Their contributions to the judiciary were made both on and off the bench. For example, as principal framers of the Judiciary Act of 1789, which shaped the federal judiciary, Ellsworth and Paterson made a significant contribution to the judiciary independent of their Supreme Court service. Most of these jurists were prominent figures in the Constitutional Convention (most notably Wilson, Ellsworth, Paterson, and John Rutledge) and/or their respective state ratifying conventions (notably William Gushing in Massachusetts, James Iredell in North Carolina, and Wilson in Pennsylvania), and their tenure on the high court merely capped the pursuits and themes of earlier political lives. Although substantial attention is appropriately focused on political service, each chapter includes a discussion (sometimes brief] of the jurists' involvement in leading cases, including participation in lower court proceedings as judge or advocate. A few among the profiled justices, in candor, exercised negligible influence on federal constitutional law or the Supreme Court as an institution. Prior to Marshall's ascendancy, the role of Supreme Court justices was very different than from today. …