Book Review

Canada and the United States

There is a common perception that the real work of the Supreme Court began after John Marshall became Chief Justice in 1801. Marshall himself was so much larger than life, and the achievements of the Court during his tenure so towering, that his predecessors and their labors are likely to be overlooked.	1
The Court's first twelve years have certainly not escaped scholarly attention. Julius Goebel, Jr., devoted 240 pages to the work of the first justices in the first volume of the History of the Supreme Court series (1971); the past few years have witnessed publication of five volumes of the comprehensive Documentary History of the Supreme Court of the United States 1789–1800 (1985–1998); and William A. Casto's book-length examination of the same era appeared just five years ago (The Supreme Court in the Early Republic [1995]).	2
It is certainly fair for Scott Douglas Gerber to say, however, that his new book does something that has not been done before, and it is something worth doing. The book's title is both clever and descriptive. Not only did the justices of the time deliver their opinions seriatim, which is to say separately, but the book presents the justices themselves seriatim, affording us not so much another analysis of the decisions of the early Court (for which there is no crying need) as a better understanding of the individuals who made up that tribunal and of whom our knowledge has been limited.	3
As the introduction points out, the approach is eclectic. The authors of the various sketches hail from a variety of disciplines and reflect a panoply of philosophies. There are both strengths and weaknesses in this design. There is much to be learned from contrasting political, historical, legal, originalist, Marxist, and deconstructionist assessments of the same decisions or judges. But, to a significant degree, the several authors of this collection are not discussing the same subject. The whole point is to discuss the justices one at a time, and each is dissected from a single point of view. Thus the discussion is in a sense incomplete. In one of the chapters I find most intriguing, Justice William Cushing is aptly classified as a "textualist" in his approach to constitutional interpretation; virtually no one in this volume attempts to make parallel assessments of the interpretive practices of his brethren. To use John Godrey Saxe's metaphor, we touch the ear of one elephant and the trunk of the next; we are hard pressed to compare the justices with one another, as no two are examined in comparable terms. That said, even one who has studies the work of the early Supreme Court can learn a good deal about the individual justices from this book, and thus a lot about the Court they composed.	4
There are ten substantive chapters, written by ten different scholars, treating ten of the twelve justices who sat on the Court before Marshall. No chapter is devoted to Thomas Johnson, who resigned after two years to avoid the burden of riding circuit, or to Alfred Moore, who left no visible trace in five years of service under Marshall and his immediate predecessor, Oliver Ellsworth. Few are likely to lament these omissions. The remaining ten justices are discussed in the order of their appointment.	. . .