William Johnson, the Dog That Did Not Bark?

Is there any point to which you would wish to draw my attention? To curious incident of dog in dog did nothing in night-time. was curious incident, remarked Sherlock Holmes. -Arthur Conan Doyle, Silver Blaze (Adventure XIII), MEMOIRS OF SHERLOCK HOLMES The conventional wisdom is that Justice William Johnson, Jr., was the first dissenter.1 This is not literally true. The first published opinion of Court was Georgia v. Brailsford,2 in which each member of Court expressed his views seriatim. Ironically, first to speak was first Justice Johnson, Thomas of Maryland,3 whose reasoning helped create a 4-2 split that produced a number of Supreme Court firsts: first published set of opinions, first split decision, and first dissent. It was Justice Johnson, William of South Carolina, who earned reputation as first persistently independent voice on Court. Johnson was nominated by President Thomas Jefferson in 1804 and served for thirty years until his death in 1834. The statistics suggest that Johnson earned his reputation as first true contrarian. He wrote over 160 opinions,4 close to one-third of which were either concurrences (ten) or dissents (thirty-eight).5 This high ratio set Johnson apart from his brethren, as next highest number of recorded separate opinions on Marshall Court was nine, which were lodged by Joseph Story.6 confess that it was Johnson's pronounced independence that prompted me to select him as my subject. When John G. Roberts, Jr., was in midst of his second Term as Chief Justice of United States Supreme Court, having succeeded his mentor William H. Rehnquist, new Chief Justice made it clear that one of his goals was to promote unanimity on bench, observing: I think that every [JJustice should be worried about Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about effect on Court as an institution.7 Roberts gleaned that imperative from record of only individual to become Chief Justice at a younger age than he: If Court in Marshall's era had issued decisions in important cases way this Court has over past thirty years, we would not have a Supreme Court today of sort that we have. . . . That suggests that what Court's been doing over past thirty years has been eroding, to some extent, capital that Marshall built up. ... think Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't, it's going to lose its credibility and legitimacy as an institution.8 The Chief Justice's statement highlights that Court has departed with increasing frequency from perspective expressed by Chief Justice William Howard Taft that [m]ost dissents . . . are a form of egotism, and [i]t is much more important what Court thinks than what any one thinks.9 It remains to be seen if Roberts will enjoy meaningful success. The ebb and flow has been uneven,10 and it is far from clear whether Roberts Court will be noted for its harmony, much less its unanimity.11 That said, his comments suggest that, while dissent is in air, it is decidedly out of favor. Ironically, collegial norm offered by Chief Justice Roberts and other critics is Marshall Court,12 on which William Johnson supposedly fought his battle to establish principle that each member of Court should feel free to state his individual views, be they expressions of concurrence or dissent. Yet more learned about Johnson, more troubled became with his label: dissenter. First, believe that Johnson's role in establishing principle of an independent voice, while important, is generally overstated. Second, believe that when we focus on Johnson we should concentrate on what he did not say rather than what he did. …