Vol. 9 No. 5 (May 1999) pp. 186-188.

SERIATIM: THE SUPREME COURT BEFORE JOHN MARSHALL by Scott Douglas Gerber (editor). New York: New York University Press, 1998, xi, 362 pp.

Reviewed by Tinsley Yarbrough, Department of Political Science, East Carolina University.

Before Chief Justice Marshall’s era, Supreme Court justices filed judicial opinions individually, or seriatim; the Court issued no opinion reflecting the rationale of a majority of justices in the cases it decided. Marshall’s successful move to end that practice and establish issuance of an opinion of the Court as the norm for each case is often cited as a major reason for the significant growth in the Court’s power and prestige during his nearly thirty-four year tenure as chief justice. By the same token, the pre-Marshall Court’s seriatim approach and relatively limited caseload also help to explain why Court scholars have largely neglected its justices and decisional record.

Text and casebook discussions of the pre-Marbury roots of judicial review typically touch on Hayburn’s Case (1792), the long unreported United States v. Yale Todd (1794), and Hylton v. United States (1796), as well as the Samuel Chase-James Iredell debate in Calder v. Bull (1798) over the propriety of constitutional interpretations based on natural law, and perhaps a few other cases. Treatments of the amendment process invariably cite Chisholm v. Georgia (1793), narrowing the reach of state sovereign immunity in federal court, as the first Supreme Court decision overturned by constitutional amendment. But few other pre-Marshall cases get any mention in the usual text or casebook treatment, and judicial biographers have rarely turned their attention to the justices of the early Court. As comedian Rodney Dangerfield would say, the pre-Marshall justices "get no respect." Yet they were, with few exceptions, among the more influential and controversial men of their time--significant figures in the formation of the Constitution and American political and diplomatic history before, during, and sometimes after their careers on the bench.

This absorbing collection of essays attempts to fill that gap in Supreme Court literature and to answer those scholars who see Marshall as "The Jurist Who Started It All" and consider the outstanding characteristic of the pre-Marshall period, in the late Bernard Schwartz’s words, its "relative unimportance" (p. 2). Each chapter, authored by a close student of the subject, profiles one of ten pre-Marshall Court justices--John Jay, John Rutledge, William Cushing, James Wilson, John Blair, James Iredell, William Paterson, Samuel Chase, Oliver Ellsworth, and Bushrod Washington. Authored by law professors, political scientists, historians, and a state supreme court justice, the chapters naturally differ somewhat in emphasis and methodology. Each, however, examines in varying degrees of depth the justice’s family connections, education and professional career, political activities and impact, judicial and constitutional philosophy, and judicial record. The authors draw, moreover, on a wealth of primary materials; and while pre-Marshall Supreme Court opinions are, of course, limited in quantity, the justices’ seriatim approach to opinion-writing, as Professor Gerber reminds readers, arguably provides more insight into the thinking of individual justices than the opinions of the Marshall era, which, although much more voluminous, were almost exclusively the chief justice’s handiwork.

Collectively and individually, the essays make a number of important contributions to our understanding of the pre-Marshall Court, its impact on what was to come, and differences between that era’s conception of the proper role of judges and the later view that they should refrain from political involvement. The authors underscore the degree to which the thinking of pre-Marshall justices influenced Marshall’s conception and defense of judicial review. Willis Whichard suggests, for example, that the chief justice drew on the substance and language of James Iredell’s discourses in writing his Marbury opinion. The essays also indicate the degree to which the justices, unlike their later counterparts, maintained active political lives even after their appointments to the bench. Chief Justice Ellsworth, for instance, was among those undertaking a presidential mission to Europe in an effort to break a diplomatic impasse with France and also regularly delivered advisory opinions on the constitutionality of the Sedition Act and related legal issues. The essays in general devote at least as much attention to such extra-judicial activities as to the justices’ Supreme Court records.

Particularly since the pre-Marshall Court’s caseload was quite limited, and that of certain justices especially so, the authors’ discussions of their subjects’ circuit-riding responsibilities are very helpful, not only exposing the reader to the wide array of legal issues which the early federal judiciary confronted at every level, but also providing further insight into the justices’ judicial and constitutional views. The rigorous physical demands the justices endured in performing their circuit-riding and other judicial and extra-judicial duties are also vividly portrayed. In fulfilling his diplomatic assignment to France, Oliver Ellsworth was obliged to travel over 900 miles by carriage and horseback in the bitter dead of winter--a debilitating nine-week journey that he would later claim broke his health and prompted his resignation from the bench, though hardly his retirement from active public life. The justices’ arduous circuit-riding duties were another constant, entirely understandable, complaint. John Jay and John Rutledge probably left the Court largely over the rigors of circuit-riding; and such duties undoubtedly hastened the untimely death at 48 of Justice Iredell, who traveled as much as 1900 miles in covering a single federal circuit.

A pair of essays seeks to rehabilitate the reputations of two justices of the period. Rejecting the conventional impression of William Cushing as "the Dan Quayle of the early American republic-- . . . an intellectual lightweight who rose to power through family and political connections--" (p. 15) Scott Gerber describes what he considers to be Cushing’s important role in the development of judicial review and especially the "textualist" approach to legal interpretation for which, in Gerber’s view, Marshall has been given undue credit. Gerber notes, for example, that Cushing, unlike most of his colleagues, chose the "textualist route" in the Chisholm case, but disputes contentions that Cushing’s Chisholm opinion was thus "unimaginative" or that the justice was "unsure of the law" or "simple." Cushing, argues Gerber, simply contended that the framers would have specifically preserved state sovereignty from federal lawsuits had they intended to limit the reach of federal judicial power in cases between states and the citizens or subjects of other states and nations. That Article III’s text contained no such exception was convincing evidence to Cushing that none was intended. Although moderating somewhat the stance he assumed in an earlier book-length study, Stephen Presser also continues his campaign to save the volatile Samuel Chase, the sole justice impeached to date, "from being perceived only as a loon," but rather as "neither completely a saint nor completely a demon," and thus "the same uneasy combination of the two, as are most of the rest of us" (pp. 284-85).

Examining the pre-Marshall Court through the medium of essays devoted to individual justices is not, however, without pitfalls. The most prominent cases of the period are discussed, for example, in virtually every essay. And while each analysis, of course, is approached from the perspective of the particular justice being profiled, each is also to some degree redundant of the others.

Moreover, while Professor Gerber devotes a portion of his introduction to outlining major overarching themes running through the essays, addition of a conclusion summarizing such themes in greater depth might have enhanced the collection’s overall quality and coherence as an integrated work rather than a set of disparate profiles. Finally, the collection’s use of a seriatim approach, focusing on individual justices rather than the Court as a whole, confirms to some degree the very impression Professor Gerber was seeking to rebut--that while individual justices of the pre-Marshall era had an undoubted influence on later Court developments, the Court of that period, with its several chiefs, simply did not develop the sort of coherent image with which Courts of later eras were to be identified. Even so, this collection goes far toward filling a void in the literature on the early justices of the world’s most significant tribunal.

Copyright 1995