Washington, Bushrod Summary

  • Last updated on November 11, 2022

Washington, a Federalist like many of his fellow Supreme Court justices, tended to join with the majority on the Court, although he expressed his opinion more openly as a circuit judge.

Washington was the son of John Augustine Washington and Hannah Bushrod and the favorite nephew of President George Washington.Washington, George He initially met John MarshallMarshall, John (later chief justice) during their legal studies at the College of William and Mary. Following his service as a cavalry officer under the Marquis de Lafayette, Washington read law with James Wilson (later associate justice) in Philadelphia.Adams, John;nominations to the Court

Bushrod Washington

(Collection of the Supreme Court of the United States)

Washington and Marshall served together in the Virginia Convention, held to adopt and ratify the U.S. Constitution. In 1798 at the urging of former president Washington, both men entered congressional campaigns as Federalists. When Justice Wilson died, President John Adams considered both Marshall and Washington to fill the vacancy. The associate justice position was first offered to Marshall but he chose to continue his congressional race. Washington abandoned his campaign to accept the appointment and, at age thirty-seven, became the youngest justice to that time. Three years later, Marshall accepted appointment as chief justice on the Court.

Justice William Johnson wrote that Washington and Marshall were “commonly estimated as one judge.” However, in the Marshall Court, silent acquiescence in the majority opinion by dissenting justices was the normal practice. Washington publicly disagreed with the chief justice only eight times in their twenty-eight years of joint tenure and with Justice Joseph Story only five times in the fourteen years they were both on the Court. He disfavored dissenting opinions (writing only three), because he believed that such opinions diluted the authority and reputation of the Court. He also avoided concurring opinions except in Dartmouth College v. Woodward[case]Dartmouth College v. Woodward[Dartmouth College v. Woodward] (1819). In many instances, he probably felt no need to dissent, as his FederalistFederalists principles about strong national government, property rights, the role of the Court, and economic regulation routinely prevailed.

Washington was known as a particularly conscientious and able circuit judge. He first rode circuit in the Deep South, then transferred to the Third Circuit covering New Jersey and Pennsylvania. Washington’s acumen manifested itself more clearly in his circuit decisions, made away from the Court and its imposed norm of unanimity. In that role, he held that congressional power over bankruptcy was supreme and preempted state action in Golden v. Prince[case]Golden v. Prince[Golden v. Prince] (1814), signed the writ of error that advanced Martin v. Hunter’s Lessee[case]Martin v. Hunter’s Lessee[Martin v. Hunter’s Lessee] (1816) to the Court, and presided over politically charged trials involving the Sedition Act of 1798 and over United States v. Bright[case]Bright, United States v.[Bright, United States v.] (1809), the treason trial of a Pennsylvania militia officer ordered to prevent enforcement of the Court’s decision in United States v. Peters[case]Peters, United States v.[Peters, United States v.] (1809).

Before assuming the bench, Washington had collected and published opinions of the Virginia Court of Appeals. His interest in disseminating precedents and legal reasoning continued as he and his colleagues, especially Justice Story, regularly shared information about their circuit decisions. The justices thus were able to identify, and somewhat guide, issues that would eventually reach the Court.

Further Reading
  • Bader, William H., and Roy M. Mersky, eds. The First One Hundred Eight Justices. Buffalo, N.Y.: William S. Hein, 2004.
  • Annis, David. Mr. Bushrod Washington: Supreme Court Justice on the Marshall Court. Notre Dame, Ind.: University of Notre Dame, 1976.
  • Clinton, Robert, Christopher Budzisz, and Peter Renstrom, eds. The Marshall Court: Justices, Rulings, and Legacy. Santa Barbara, ABC-Clio, 2007.
  • Custer, Lawrence B. “Bushrod Washington and John Marshall: A Preliminary Inquiry.” American Journal of Legal History 4 (1960): 34-48.
  • Harrington, Matthew P. Jay and Ellsworth, The First Courts: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2007.
  • White, G. Edward. The Marshall Court and Cultural Change, 1815-1835. New York: Oxford University Press, 1991.

Dartmouth College v. Woodward

Johnson, William

Marshall, John

Martin v. Hunter’s Lessee

Second Amendment

Story, Joseph

Washington, George

Categories: History