The Origin of Supreme Court Dissent

Abstract

N deciding the Steel Case of I952, the Supreme Court gave a dramatic illustration of its recent practice of freedom of expression. The six majority justices who denied validity to President Truman's seizure order resorted to a somewhat unorthodox mode of delivering opinions. The concise opinion which Mr. Justice Black rendered for the Court was followed by five separate opinions, one for each of the other judges comprising the majority.' Since diversity of reasoning may produce uncertainty in the law, one may expect that the Court's procedure in the Steel Case will occasion adverse comment from those who seek clarity and precision in the fundamental law. For light on this problem, one may with profit turn back to the beginnings of dissent on the Court. It was during the term of Chief Justice John Marshall that the justices established in firm practice the respectability of separate utterance and dissent. Justice William Johnson, a Jeffersonian, spearheaded the movement for free expression. Johnson was born in Charleston, South Carolina, in I77I, the son of a Revolutionary patriot. After completing his studies at Princeton, he read law with Charles Cotesworth Pinckney in Charleston. In I794, as a recruit to the Jeffersonian Republicans, he began a six-year term in the State Legislature; there followed four more years in the State Judiciary. When a vacancy occurred on the Supreme Court, in i804, President Jefferson appointed him an associate justice, a post he held for thirty years. This article, adapted from a forthcoming biography of Mr. Justice Johnson,2 explains how the young Republican judge struggled for free expression on the high bench and how he later won praise for his efforts from Jefferson himself. The letter which reached Charleston, South Carolina, in the late