In Defense of “Public Reason”: Supreme Court Justice William Johnson SANDRA F. VANBURKLEO* For those of us who gravitate toward rebels and upstarts, Supreme Court Justice William Johnson has uncommon appeal, ifonly because he was the first member ofthe federal Bench to kick up his heels in a sustained, effective, and deliberate way. In 1954, Johnson’s only biographer, Donald Morgan, proclaimed him “the first dissenter,”1 a force for democratization in the style of Thomas Jefferson and Andrew Jackson, the man who persuaded ChiefJustice John Marshall to compromise on the question ofunitary opinions and institutionalize (ifnot applaud) publication ofconcurring or dissenting departures from the majority’s official reasoning. However we decide to characterize him, it is fair to say that, of all the notoriously head strong Associate Justices, Johnson is the least well known. We mightjustify another look on that ground alone. But there are other, better reasons for reconsideration. Johnson’s career serves as a window into the earliest decades of federal practice, when institutions were halfformed and when renegades could reasonably hope to shape future developments. Because his professional life spanned two formative eras in the nation’s past—the age ofrevolution and the early national period, coincident with the rise of a recognizably modern Supreme Court—we are given an opportunity to step back from our own moment and consider, not only when and why judicial dissent began, but what we have gained and lost over two cen turies, and what, if anything, we might want to reclaim from the federal judiciary’s rapidly receding past. We begin with basic questions: Who was William Johnson? In what sense was he a dissenter? Was he the instrumentalist vari ety associated, rightly or wrongly, with the likes of William Douglas and John Marshall Harlan I? An ideologue interested mainly in advancing the fortunes of political parties and leaders? Was he merely a “crank,” as nineteenth-century Americans sometimes put it? How would Johnson himself want us to characterize his contributions? And why have 116 JOURNAL OF SUPREME COURT HISTORY I chosen a title with an anachronistic phrase (“public reason”) pirated from legal philoso pher John Rawls?2 Remarkably, fiftyyears afterMorgan pub lished his still-singular biography, a number of questions about the “first dissenter” remain unanswered. When scholars consider Johnson at all,3 he variously appears as a brilliant partisan of Thomas Jefferson or Jackson, an ill-humored thorn in Marshall’s side, and a man driven mainly by vanity or vendetta. To some extent, these are mischaracterizations. It is more accurate, and perhaps more interest ing, to describe Johnson as an unreconstructed Anti-Federalist (or Whiggish oppositionist), rather than as a far-sighted political or con stitutional modernist. But critics also are right to say—ifsometimes for the wrong reasons— that Johnson’s view ofcourts and constitutions differed appreciably from Marshall’s. His con tributions to Supreme Court history thus were both anachronistic and innovative. In many respects, William Johnson’s his torical moment is now a foreign country, infused with political and constitutional mean ings quite unlike our own. He was born in Charleston, South Carolina, two days after Christmas in 1771, the favorite son of Sarah Nightingale and William Johnson. The senior William was a zealously patriotic blacksmith and legislator who managed to amass an im pressive fortune before his late-life death. His son attended the College of New Jersey at Princeton, then under the inspired leadership ofGeorge Witherspoon, where he studied gen tlemanly arts and sciences in preparation for law study. He joined prestigious literary soci eties to hone his writing skills and excelled in Latin translation. As colonial resistance strate gies yielded to calls for independence and, fi nally, to war, Johnson’s father joined the front lines in South Carolina—a decision that led to wartime detention in Florida and the family’s exile. These were times, in the elder Johnson’s words, of “dark and gloomy” dislocation, ame liorated by the justice of the American cause and the generosity of friends.4 By the mid-1790s, social connections, achievement, and a crying need for political talent inthe young republic convergedtojumpstart the younger Johnson’s career. After leav ing Princeton, he...