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Monday, August 12, 2019

Chief Justice Classifications

We are familiar with the practice of describing the Supreme Court by reference to the Chief Justice at the time. The Marshall Court, the Warren Court, the Roberts Court, etc. But when did this practice get started. And why?

I don't know the answer. But it's an interesting question. A quick search indicates that this sort of terminology was not used by law review articles or by the Supreme Court until the 1930s. Perhaps the usage came earlier in books or treatises, but that will take more time to check. Why this change occurred is even more elusive. Some Chief Justices, of course, do wield great influence over the Court. Most, though, do not. The urge to classify can be irresistible, but is that the best explanation? 

Posted by Gerard Magliocca on August 12, 2019 at 08:53 PM | Permalink


Thanks for the point about Cooley. That's very helpful.

Posted by: Gerard | Aug 15, 2019 9:30:48 AM

In 1889 Judge Thomas Cooley et al. delivered a series of five lectures on constitutional law to the Political Science Association of the University of Michigan; they were published that year under the title, “Constitutional History of the United States as Seen in the Development of American Law” (New York: Putnam’s). The organization and designation of the lectures leave little doubt about the shared assumptions of both speakers and audience: the second lecture is “Constitutional Development in the United States as Influenced by Chief-Justice Marshall”; the third is “Constitutional Development in the United States as Influenced by Chief-Justice Taney.” I think it’s clear the intellectual categories “Marshall Court” and “Taney Court” were well-accepted then. There’s a separate question about literary style. The preference for a terser expression of the same concepts is probably a 1930s phenomenon.

Posted by: RQA | Aug 14, 2019 9:54:03 AM

google n gram viewer brings up a few things;

1) The phrases "Marshall court" and "Taney court" seem to come into regular use in the 1930s or 1940s.

2) In Clifford Smyth, John Marshall, Father of the Supreme Court 134 (1931), Smyth claims, "But Marshall's hold upon his associates was so strong, so absolute, that the great Federal tribunal of justice came to be known simply as Mr. Marshall's Court."

Posted by: Orin Kerr | Aug 13, 2019 12:39:36 AM

This is a guess. But in the'30s--when you saw the terminology beginning-- they were in a two-decade period of two genuinely famous Chiefs--a former President and a guy who went to bed on Election Night believing he was about to become President. One could see the urge to associate the Court with these well-known leaders.

Posted by: Howard Wasserman | Aug 12, 2019 9:26:14 PM

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