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Friday, May 22, 2020

The First Closely Divided Vote in the Supreme Court

Today we are accustomed to 5-4 votes in the Supreme Court. Of course, during the Marshall Court most of the opinions were unanimous. (Indeed, there were a couple of years where every opinion was unanimous.)

One thing that makes Ogden v. Saunders unique is that it was the first case on a constitutional question where the Court made its decision by a one-vote majority. The vote was 4-3, as there were only 7 Justices serving at that time. (Granted, they may have voted 4-3 in conference in earlier cases and just announced a "unanimous" decision, but we have no way of knowing.) This must have come as quite a shock to whoever was a Court-watcher in 1827, especially since the Chief Justice was in dissent on the constitutional point.

Next time I hope to share some new information that I've discovered about Ogden.


Posted by Gerard Magliocca on May 22, 2020 at 08:03 AM | Permalink


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