“Commonly Estimated as One Judge”: Bushrod Washington and the Marshall Court

In 1822, Justice William Johnson gave Thomas Jefferson a brief description of his colleagues from his early years on the Supreme Court.¹ After dismissing almost all of them as “incompetent,” “slow,” or unable to “think or write,” Justice Johnson told Jefferson that Chief Justice John Marshall and Justice Bushrod Washington “are commonly estimated as one judge.”² One way of understanding Johnson's comment is that he thought that Justice Washington simply followed Chief Justice Marshall's lead, which is consistent with the idea that Marshall dominated his Supreme Court unlike any previous or subsequent Chief Justice. In researching my forthcoming biography of Bushrod Washington, I instead reached the conclusion that Justice Johnson called Washington and Marshall “one judge” because they were close collaborators.³ Indeed, the Marshall Court is best understood as a partnership created by these two remarkable Virginians.

My claim challenges three cliches about the Marshall Court. The first is that Justice Washington was, in the words of Albert Beveridge, “slow-thinking” and dim-witted.⁴ The second is that Associate Justice Joseph Story was Chief Justice Marshall's principal ally during Story's entire tenure on the Court.⁵ While Story was an important member of the Marshall Court and was the Chief Justice's right-hand-man after Justice Washington's death in 1829, he was not the linchpin of that institution while Washington was on the bench. The third is that Chief Justice Marshall alone was the Marshall Court. Nobody thinks Earl Warren did everything on the Warren Court. Instead, we recognize that Chief Justice Warren worked with many other talented colleagues to fashion the jurisprudence of that era.⁶ The same is true for John Marshall, and his alter ego was Bushrod Washington.

Washington and Marshall's working relationship began well before they reached the Supreme Court. They first met in 1780 at the College of William and Mary, where they attended Professor George Wythe's law lectures and engaged in debates as members of Phi Beta Kappa.⁷ In 1787, they were reunited as members of the Virginia House of Burgesses when Washington was elected to the legislature.⁸ A year later, they both were chosen as delegates to Virginia's ratifying convention for the Constitution, where they strongly supported ratification.⁹ But Washington and Marshall did not become close until Washington moved his legal practice to Richmond in 1792. Soon thereafter they were frequently arguing cases as a team or against each other in the Virginia Court of Appeals (Virginia's highest court).¹⁰ They also served together on the Richmond City Council from 1794 to 1795, including a committee about local police reform.¹¹ When Marshall returned from his diplomatic mission in France now known of the “XYZ Affair,” Washington welcomed him home with a rousing speech at a celebration in Alexandria in which he said: “When future generations peruse the history of America, they will find the name of Marshall on its sacred page as one of the brightest ornaments of the age in which he lived.”¹²

On a personal level, Washington and Marshall were drawn together by common ideas and experiences. They both served in the Revolutionary War.¹³ They were staunch Federalists who believed in national power and in protecting vested property rights from the encroachments of state legislatures. They both owned and sold many enslaved people.¹⁴ And while they were each happily married, their wives suffered bouts of mental illness that often left both men as caretakers.¹⁵

Most important of all, they were both awed by and earned the confidence of George Washington. In Bushrod's case, this trust stemmed from a family connection, as he was the eldest son of George's favorite younger brother Jack.¹⁶ In Marshall's case, the bond stemmed from his years of military service under General Washington's command. In 1798, the General invited both men to Mount Vernon and demonstrated his faith in them by twisting their arms until they agreed to run for the House of Representatives in the upcoming midterm elections.¹⁷ When George died, he bequeathed Mount Vernon and his personal papers to his nephew.¹⁸ Bushrod promptly invited Marshall to write George's official biography and was the Chief Justice's editor on that project for many years.¹⁹ They also jointly advised Martha Washington on issues related to her husband's estate after his death.²⁰

Washington and Marshall were widely acknowledged as two of the best lawyers in Virginia when Justice James Wilson died in 1798. President John Adams decided that Justice Wilson's seat should go to a Virginian, as that critical state was not represented on the Supreme Court. The President was given two names—John Marshall and Bushrod Washington.²¹ Attorney General Thomas Pickering told the president that if “Marshall should decline. Mr. Washington has decidedly a superior claim to any other gentleman there of the profession.”²² Marshall did decline but told the attorney general that Washington would say yes and that “a more proper person could not be named.”²³ Washington accepted the nomination, withdrew from his congressional campaign, and was confirmed by the Senate. When the c-justiceship became available a few years later, Marshall said yes to President Adams and joined Washington on the Bench.

The surviving correspondence between Washington and Marshall is written in a tone of mutual respect. In this era, the justices spent most of the year as circuit judges conducting trials and hearing appeals in designated parts of the country. When Washington and Marshall heard novel cases on their respective circuits, they kept each other informed and asked each other for help.²⁴ In one letter, Marshall thanked Washington for his views “in the case on which I consulted you. I have from the first thought [the issue] doubtful but shall decide it in conformity with your opinion.”²⁵ When Washington asked Marshall for his insights on a constitutional question, the Chief Justice obliged but concluded that “your own judgment, you having heard the argument, is much more to be relied on than mine.”²⁶ This is the language of equals, not the instructions rather of a leader to a follower.

Washington later told the publisher that he “went to Richmond and continued with Mr. Marshall until we went through the reading and correcting of the third volume. I have just finished a second reading of it for the purpose of making a table of contents.”²⁹ One cannot help but wonder if this was the same approach that Marshall and Washington used for writing some opinions, but there is no way to know because none of Marshall's Supreme Court opinion drafts survive.³⁰

To understand how Washington and Marshall's professional relationship carried over into their work on the Supreme Court, the best place to start is with two customs that made the Marshall Court distinctive. One was speaking as often as possible through a single opinion written by the Chief Justice. Washington and Marshall were both familiar with President Edmund Pendleton's leadership of the Virginia Court of Appeals, where he strived to write a single unanimous opinion for each case.³¹ In the same letter where Justice William Johnson described Washington and Marshall as “one judge,” he said that his own inclination to write separate opinions was met with “nothing but lectures on the indecency of judges cutting at each other, and the loss of reputation which the Virginia appellate court had sustained by pursuing such a course” after Pendleton's death.³² The two Virginians on the Supreme Court were almost certainly the source of these lectures due to their considerable practice experience before the Virginia Court of Appeals. Justice Washington could not establish the custom of communicating with one voice without the support of the Chief Justice, but Marshall probably could not have sustained that custom without Washington's backing. As Justice Story later said, “Justice Washington thinks (and very correctly) that the habit of delivering dissenting opinions on ordinary occasions weaken[s] the authority of the Court.”³³

Justice Washington took charge of making these lodging arrangements, probably because at Mount Vernon he lived the closest of all the justices to the capital. After the British burned the city in 1814, Marshall's first reaction was to write Bushrod and ask whether he could still find a suitable boarding house. “We must rely on you,” the Chief Justice said, “to make inquiries and if in your power to make arrangements for our accommodation. If it be practicable to keep us together you know how desirable this will be. If that be impracticable, we must be as near each other as possible. Perhaps we may dine together should we even be compelled to lodge in different houses … [G]ive me all the intelligence in your power on this interesting subject.”³⁵

Washington's essential role in the boarding house lifestyle is suggested by the fact that immediately after his death in 1829, some justices began living on their own during the Court's sessions and they never all roomed together again.³⁶ This indicates that Washington, not the Chief Justice, was the driving force behind the Court's communal life.

Since Marshall was the Chief Justice, why did he need Justice Washington's consent to grant the lawyer's request? The most plausible answer is that there was an informal understanding that Washington would keep the notes of oral arguments for the Court's internal use. For however long he may have performed this function, Justice Washington would have been able (intentionally or not) to shape opinions when his notes were used for discussion and opinion drafting.

Washington and Marshall's “first among equals” status on the Court is further confirmed by their willingness to take sensitive actions without consulting all their colleagues. The most famous example involves the anonymous essays that the Chief Justice wrote to defend the opinion in McCulloch v. Maryland, which upheld the constitutionality of the Second Bank of the United States.³⁹ Marshall entrusted these essays to Washington and asked him to convey them secretly to the relevant newspaper editors.⁴⁰ There is no indication that Marshall or Washington asked the other justices for their views about what could well be described as inappropriate statements about a case.⁴¹ In Martin v. Hunter's Lessee, the Chief Justice recused himself from the case due to his brother's ownership of some of the property at issue.⁴² Nevertheless, Marshall decided to write the petition for a writ of error from the Virginia Court of Appeals so that this important dispute about federal supremacy over state courts could be heard quickly by the Supreme Court.⁴³ He then gave the petition to Washington, who as the Senior Associate Justice was the presiding officer in Marshall's absence, and Washington scheduled the case for expedited argument.⁴⁴ Here as well, there is no indication that either man sought the views of the rest of the Court for these highly questionable moves.

When the Chief Justice did seek input from all his colleagues, Justice Washington's views carried special weight. In 1802, Congress eliminated all the Article III circuit judges appointed by President Adams in 1801—the infamous “midnight judges”—and restored the practice of circuit riding by the justices that dated back to the Judiciary Act of 1789.⁴⁵ Marshall and Washington were convinced that the restoration of circuit riding was unconstitutional, in part because the circuit judges were ousted from office by a statute rather than through the more rigorous impeachment process.⁴⁶ In response, the Chief Justice wrote to all the justices, asking whether they should refuse to return to circuit riding and, in effect, go on strike against an unconstitutional “court-shrinking” statute.⁴⁷

Washington was the first justice to oppose a strike and carried the Court with him despite the Chief Justice's reservations. The letter explaining Washington's thinking is lost, but from Marshall's subsequent description we can surmise that Washington said that a strike would be impractical at best and counterproductive at worst.⁴⁸ The justices would have to resume circuit riding and accept an unconstitutional statute because the political climate was too unfavorable.⁴⁹ Marshall was not persuaded and continued to make arguments for a strike, but the justices who responded after Washington agreed with him rather than with the Chief Justice.⁵⁰ With the benefit of hindsight, a judicial strike in 1802 would probably have been a disaster for the Supreme Court and for an independent judiciary given Jefferson's hostility toward the Federalists on the courts and his support in Congress.⁵¹ In this instance, Marshall needed Washington's sober temperament to balance his own tendency to act boldly. Here there is an unavoidable comparison to the way in which George Washington's solid judgment was often vital for the equilibrium of his headstrong allies, most notably Alexander Hamilton.⁵²

The strike example illustrates a broader truth about any true partnership, which is that Washington and Marshall disagreed more often than the typical narrative of the Marshall Court acknowledges.⁵³ While they rarely expressed separate views in public out of a desire to strengthen the Court as an institution, Washington and Marshall were independent thinkers who crossed swords more often in private. One way that the Court masked that reality was by issuing unanimous opinions that stated that a “majority” of the justices joined in the reasoning, which was just a polite way of saying that some justices dissented without opinion.⁵⁴ Sometimes the Court simply found a way to paper over its differences, which in one case led Justice Johnson to say that “the judgment partakes as much of a compromise, as of a legal adjudication.”⁵⁵ Lastly, Justice Story sometimes finessed the problem by stating that other justices joined his dissenting opinions without naming them.⁵⁶

Justice Story's cloak of anonymity over other dissenters probably concealed a split between Marshall and Washington in a significant constitutional case.⁵⁷ Houston v. Moore involved a constitutional challenge to a court-martial conviction in Pennsylvania for a member of the state militia who refused to answer President Madison's call to arms during the war of 1812.⁵⁸ Houston was argued during the Supreme Court's 1819 Term, and that summer Chief Justice Marshall assigned the opinion to Justice Story and told him that the case “cannot be in better hands. I shall sketch my ideas for the purpose of examining them more closely but shall not prepare a regular opinion . . . I do not think we shall differ.”⁵⁹ When Houston was handed down in 1820, though, Justice Washington delivered the opinion with Justice Story and one other unnamed colleague in dissent.⁶⁰ Story must have lost his majority to Justice Washington, which again shows that Washington was a powerful voice within the Court. The other takeaway is that Chief Justice Marshall was probably the unnamed dissenter in Houston, given that he said privately that he agreed with Justice Story about the disposition of the case.⁶¹

Washington's sharpest public debate with Marshall came in Ogden v. Saunders, where the Court upheld the constitutionality of prospective state bankruptcy laws against a Contracts Clause challenge.⁶² In announcing the judgment of the Court, Washington adopted a positivist approach to contract law and rejected the Chief Justice's dissenting view that contracts flowed from natural law and thus could not be abrogated by a state bankruptcy statute.⁶³ Washington reasoned that state law regulated contracts prospectively in many ways that could not be distinguished from a bankruptcy statute and used some of the same examples that Justice Oliver Wendell Holmes Jr. would later invoke in his famous dissents against the “liberty of contract” doctrine.⁶⁴

Washington and Marshall also presented dueling textual, structural, and historical readings of Article One, Section Ten of the Constitution. Justice Washington argued that the Contracts Clause should be read in harmony with the provisions in Section Ten that barred only retrospective state laws, while Chief Justice Marshall contended that the Contracts Clause was framed in general terms and therefore should be applied to all state laws that completely discharged contractual obligations.⁶⁵

Even when Marshall and Washington broadly agreed, their jurisprudence still differed in a way that reinforces the thought that Marshall was the sail and Washington the anchor in their relationship. In Dartmouth College v. Woodward, both justices concluded that the New Hampshire legislature's substantial changes to Dartmouth's royal charter violated the Contracts Clause.⁶⁶ But the Chief Justice's opinion was written in his distinctive style, which involved broad statements of first principles and virtually no citations to case or scholarly authority.⁶⁷ Marshall also offered up dicta, which was a frequent indulgence in his opinions, on how the Contracts Clause might prohibit state no-fault divorce laws if any were ever enacted.⁶⁸ Justice Washington, by contrast, took a narrower path in his separate opinion, cited authority, and avoided the issue of divorce entirely.⁶⁹ This does not mean that Marshall was incapable of writing tighter judicial opinions or that Washington was unable to summon stirring rhetoric when appropriate.⁷⁰ The point is that their contrasting styles blended together made an enormous contribution to the work of the Supreme Court.

If Bushrod Washington and John Marshall were “one judge” in the sense that together they were the center of the Marshall Court, why does Chief Justice Marshall get the lion's share of the credit? The answer is partly institutional and partly personal. On the institutional side, the convention of speaking unanimously through the Chief Justice naturally focused attention on him. Moreover, the boarding house arrangement that Washington spearheaded made most of the Court's internal deliberations oral and thus shielded them from the prying eyes of historians. Only cases that extended beyond one term or exceptional situations such as the strike debate were typically discussed in writing and reveal more of the truth.

On the personal side, Bushrod Washington was content to stay in the background and be Marshall's silent partner in a way that few others would have accepted. He bore the most famous surname in the United States and lived in the country's most famous home. He was not interested in more attention. Washington also developed the habit of public reticence in his relationship with his uncle, along with an abiding interest in building institutions that were greater than their individual members. For example, during Virginia's ratifying convention for the Constitution Bushrod said nothing on the floor but kept George—who was not a delegate—informed about the proceedings.⁷¹ Speaking out would have been unwise because anything Bushrod said might have been attributed to George and probably would have distracted from the goal of ratification. Indeed, when Bushrod was in the state legislature, George advised him to “rise but seldom” and “offer your sentiments with modest diffidence.”⁷² Justice Washington took this approach to heart. Speaking out frequently as a justice would have distracted from the goal of establishing a durable Supreme Court and an impersonal rule of law.

A personal factor with an institutional twist is that Justice Washington wrote fewer Supreme Court opinions than some of his colleagues because he could see out of only one eye. Washington went partially blind in 1797 due to an unknown illness.⁷³ As a result, he was a slow writer, which is part of the reason why he decided not to write George Washington's biography himself.⁷⁴ In circuit court, his limited eyesight did not pose a significant problem because he could take his time writing and editing his opinions before publishing them. On the Supreme Court, though, Washington's disability was an issue because the justices met for only four to six weeks during their annual session. As a result, he wrote far fewer Supreme Court opinions than Justice Story or Justice Johnson, which makes him look less important than he was.

Nevertheless, there are clues that show Washington's influence on opinions that were authored by someone else. Terrett v. Taylor involved a challenge by an Episcopal parish in Alexandria to a Virginia statute that repealed the special privileges and property that the Church retained for years after its disestablishment in 1776.⁷⁵ In a unanimous opinion by Justice Story, the Court held that the parish in question was not covered by the repeal because Alexandria was made a part of the District of Columbia before the Virginia statute was enacted.⁷⁶ Most of Terrett, though, criticized the Virginia statute on the merits as contrary to religious freedom and property rights.⁷⁷ When Washington was in private practice, he wrote an analysis of the Virginia proposal and concluded that the repeal of the Episcopal Church's privileges would violate the state constitution.⁷⁸ A comparison of that memo with the Terrett opinion reveals many similarities in reasoning and rhetoric.⁷⁹ These similarities are almost certainly not a coincidence. The more logical conclusion is that Justice Washington worked with Story on the opinion given his knowledge of the issue.⁸⁰ This probably happened in other cases, but Terrett is the only case where there is proof.

Another piece of circumstantial evidence for the ballast that Washington gave to the Marshall Court comes his initial absence in Green v. Biddle. Green involved a challenge to two Kentucky real property statutes that were invalidated by the Court.⁸¹ Justice Washington was ill and did not participate in Green. Justice Story's terse opinion for the Court was poorly received, in part because he cited no cases, said almost nothing about the Constitution, and relied instead on “general principles of law” and “first principles of justice.”⁸² As a result, Senator Henry Clay of Kentucky, the ex-Speaker of the House of Representatives and a formidable Supreme Court advocate in his own right, urged the Court to hear a second argument in Green.⁸³

The second time around, Justice Washington was present and rewrote Justice Story's opinion. While reaching the same conclusion as Story, Washington wrote a longer opinion with considerable citations to authority and made clear that “our opinion is founded exclusively upon the Constitution of the United States.”⁸⁴ Washington's opinion in Green did not end the controversy over the Court's ruling (especially in Kentucky), but the bottom line is that without Washington's presence the Court fell into a self-inflicted wound that his usual sensibilities and caution tended to prevent.

Understanding the Marshall Court as a genuine team rather than as the work of a single genius is right not only because it is accurate. Viewing Chief Justice Marshall as synonymous with the Marshall Court sets an impossible standard for his successors to match. More than once, a Chief Justice who could not persuade his colleagues in an important case must have wondered: “How did Marshall do it all by himself and why can't I?” The reassuring answer is that Marshall did not act alone. Without Bushrod Washington, the Marshall Court would not have succeeded.

The author is the Samuel R. Rosen Professor, Indiana University Robert H. McKinney School of Law.