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Tuesday, May 12, 2020

Justice Story and the Mystery Dissenters

One curious aspect of the Marshall Court's cases involves Justice Story's dissents. For many years, Story had a practice of not naming the Justices who signed his dissenting opinions. He would instead say something like "One of my brethren concurs in my opinion." We are then left to guess who that person was.

No other Justice appears to have followed this practice. Though dissents joined by more than one Justice were rare in those days, they did occur. And when they did, the other Justices typically said something like "I am pleased to say that Justice [Name] joins my opinion." I don't know why Story did the opposite, or why the Justices who joined his dissents did not insist on being named.

In one case, the Court Reporter added a footnote naming the anonymous Justices who joined a Story dissent. I'm going to try to see if journalists might have named the others, though that's a long shot.

Posted by Gerard Magliocca on May 12, 2020 at 08:25 AM | Permalink


Hrm. I checked the Court's dockets for that period but I suspect they won't be helpful - but maybe? NARA has scanned them: https://catalog.archives.gov/id/82589055

It would be great if there were docket books for that period - I've used CJ Waite's Docket Books (available at LoC) and found they tell us a lot about unrecorded dissents and such. The US Supreme Court Library does indicate they have some holdings, but I have no idea what's actually there: https://www.supremecourt.gov/about/instructions.aspx

Posted by: ZVI S ROSEN | May 12, 2020 11:04:52 PM


The cases that I am looking at precede Justice Baldwin's tenure, unfortunately.

Posted by: Gerard | May 12, 2020 8:00:58 PM

Have you tried Justice Baldwin's Notes? There's generally at least one page for each case, although things are missing, might have useful clues: https://catalog.archives.gov/id/618867

Obviously getting them right now is tough - is there a particular case you had in mind? I've scanned a few.

Posted by: Zvi S. Rosen | May 12, 2020 5:29:13 PM

You may find then, great interest, in the post:

"Anonymous Supreme Court Opinions"

Here, in " The Volokh Conspiracy ":


Posted by: El roam | May 12, 2020 9:04:09 AM

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