« Time for Congress to Codify Bivens? | Main | Hiring Announcement: City Law School (London, UK) »

Wednesday, February 26, 2020

Circuit Correspondence in the Marshall Court

Part of my biography on Bushrod Washington will focus on his work as a circuit judge. During the Marshall Court, each Justice was required to ride circuit in a designated portion of the country, conducting trials and hearing appeals. The Justices wrote to each other about their cases. Sometimes this involved asking another Justice for advice (in other words, "Has this question ever come up in your circuit?" Or "What is your opinion about this issue?"). Sometimes the letters just provided a rundown on the holdings in the decided cases. And sometimes they would share draft opinions with their colleagues. 

One letter at Mount Vernon, though, shows that this practice went a step further. Justice Washington wrote to his newish colleague, Smith Thompson, in 1825 about a set of circuit opinions Thompson had written and sent to him. Bushrod's two-page letter said that he concurred with Thompson's conclusion in each case, but then pointed out various problems that he had with the reasoning of some of them. (This sounds like giving someone comments on a paper where you start by saying that you love the project and then point out twenty specific things you don't like.)

I'm thinking about the import of this letter. (Thompson's initial letter is lost.) Did Thompson ask for Bushrod's view? If so, why? Because he was a newish judge? Because Bushrod was highly-respected within the Court? Because he was trying to curry favor? Or was Bushrod trying to mould his junior colleague without a prompt. Was this an example of how the senior Justices (at that point Marshall, Bushrod, and Story) attempted to tame/socialize the new appointees. I'm not sure yet.

Posted by Gerard Magliocca on February 26, 2020 at 01:28 PM | Permalink

Comments

Post a comment