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 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
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
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.
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
Martin v. Hunter’s Lessee