lessons from the pre-Marshall Court

Scott Gerber s-gerber at onu.edu
Sat Aug 6 11:01:31 PDT 2005

Steve Presser forwarded me the attached recent review of my 
pre-Marshall Court collection.  (Yes, recent:  the publishing journal 
is apparently backlogged.)

The nice comments from Herb Johnson aside, I share his view that we 
can, and should, learn from the courts of the past.

Scott Gerber
Law College
Ohio Northern University

46 Am. J. Legal Hist. 346

American Journal of Legal History
July, 2004

Book Review


Herbert A. Johnson
University of South Carolina School of Law

Copyright © 2004 by Temple University James E. Beasley School of Law; 
A. Johnson

While many essay collections may deserve the bibliographic graveyard to 
which they are assigned, it would be a crime against scholarship if 
this group of biographical sketches suffered a similar fate. The 
distinguished contributors provide us with a convenient interpretative 
guide to the lives, jurisprudence, and decision-making of those jurists 
who pre-dated Chief Justice Marshall's tenure on the bench of the U.S. 
Supreme Court. Good judicial biography is an essential building block 
of constitutional history, and as such this book represents a 
significant contribution to our knowledge of early Supreme Court. It 
challenges us to take the Jay and Ellsworth Courts seriously, and 
brings their achievements out of the shadow cast by the subsequent era 
of John Marshall. Throughout the volume the authors prove that the 
early Court needs to be studied on its own terms and not 
retrospectively *347 by invidious comparisons to the Marshall Court.
With this publication we are one step closer to a revised understanding 
of the early Court. The essays provide the historiographic and 
analytical framework upon which future study might well proceed. Thus, 
they complement the invaluable edition of early Court records becoming 
available in the Documentary History of the Supreme Court of the United 
States, edited by Maeva Marcus and her associates. Yet we are at the 
"end of the beginning", and certainly not finished, with this scholarly 
project. Much still remains to be accomplished These and other 
biographical materials need to be used to reveal the personal dynamics 
within these early Courts. With such a small group engaged in such 
complex business, interrelationships are formative of an institutional 
The essays provide readers with fascinating insights into these and 
other matters. James Stoner's essay suggests that a difference in 
judicial practice distinguished the early Courts from these of the 
Marshall era (p. 332). Sandra Van Burkleo, Willis Whichard, and Bill 
Casto touch upon the close political and personal relationships that 
existed between the Supreme Court justices and Federalist officials in 
the two other branches of government (pp. 29, 210, 292). This made for 
harmonious judicial support for the Washington and Adams 
administrations (see Gerber's comments on William Cushing and James 
Iredell, and Stephen Preseer's assessment of Samuel Chase, pp. 111, 
264). Interestingly, the authors do not comment upon the relative lack 
of collegiality in the Jay Court compared to the close personal and 
professional ties that developed among Chief Justice Marshall and his 
associate justices.
We find a recurrent theme that the early justices exhibited great 
caution and judicial restraint, with the possible exception of Samuel 
Chase (Wythe Holt on John Blair, Stephen Presser on Chase, pp. 184, 
267-68). They seemed aware of the delicate balance upon which 
Federalist political control depended, but nevertheless their grand 
jury charges could be inflammatory, as Justice Chase learned to his 
discomfort in 1803 (Stoner's comment about Justice Washington's 
"tenderness of giving offense, ..." is significant, p 323). There is a 
need to look closely at the justices' priorities, to determine whether 
loyalty to the administrations of Washington and Adams may have 
overwhelmed this sense of restraint and decorum when the political 
stakes became higher after 1794.
There is a need to accept the challenge of examining the institutional 
history of the early Supreme Court. For example, James Haw and some 
other authors touch upon the small case load as a limiting factor on 
the work of the Court Writing on John Rutledge, Haw notes that no cases 
were decided in South Carolina's federal Circuit Court during 
Rutledge's 1790-91 tenure. Daniel Degnan assessing Justice William 
Paterson wisely comments that great cases would take time to 
develop--time that was not available in the first decade of the Court's 
existence (pp. 28, 81, 106, 241). Scott Gerber points out that Justice 
Cushing's opinion writing style was direct and to the point (pp. 107, 
112), today we would say he "went for the jugular" every time! Opinion 
writing doubtless varies over the course of time, and some of Cushing's 
work on the Massachusetts colonial courts suggest that this was not 
only his style, but an approach that he shared with his Superior Court 
associates. Did a more expansive and more analytical style prevail in 
Maryland, Pennsylvania, and Virginia during the colonial and 
Confederation periods? Certainly Justice Warren from Pennsylvania and 
Chase from Maryland provided sharp contrasts in writing style to that 
of Cushing (see the discussion of Wilson by Mark D. Hall, and Chase by 
Presser, pp. 139, 263-64). We really need to look at modes of opinion 
writing, for they may tell us much *348 about thought patterns and 
Clearly, the purpose of this essay collection--to focus attention upon 
the Jay-Ellsworth Courts, and to study them in their own right--has 
been admirably achieved. Yet much more has been done. The authors have 
provided all students of the Supreme Court with an expanded and 
revitalized research agenda, and their perceptive insight challenge 
scholars to continue work on Jay-Ellsworth era. For this they deserve 
our gratitude and sincere congratulations.


Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810

More information about the Conlawprof mailing list