No rule of Court or statute requires the justices to agree to an Opinion of the Court. In fact, before Chief Justice John Marshall came to the bench in 1801, each justice would typically write his own separate opinion. The default rule was a series of opinions, called seriatim opinions (a series of opinions). This meant that there were many more opinions than decisions. Once the justices published their opinions, the lawyers would have to count the justices to try to figure out what propositions of law did the majority support and which propositions were dictum.
Before Marshall, Chief Justice Ellsworth tried to persuade his colleagues to adopt an Opinion of the Court. There were a few such opinions, but when he left the Court, the justices returned to their own ways. That little fact illustrates the power of Marshall to convince his colleagues. Ellsworth could not change the custom of the Court; Marshall did. Yet, the chief justice is just one voice among the other justices. The title of chief may be impressive (and it carries a slight increase in salary), but the chief’s only power over other justices is his power to persuade. At that, Marshall excelled.
Probably the most significant case in the Supreme Court before Marshall became chief is Chisholm v. Georgia (1793). The Court held that Article III of the Constitution granted federal courts the power to hear disputes between private citizens and states. It was an inauspicious beginning for the new Court: Georgia refused to appear, claiming it had sovereign immunity; Georgia lost; and then the Eleventh Amendment (enacted in 1795) overturned Chisholm.
Each of the justices (Chief Justice John Jay, and Justices John Blair, James Wilson, William Cushing, and James Iredell) in Chisholm wrote separate opinions. The first justice listed in the official Reports for Chisholm is Justice Iredell, even though he dissented. That was because of another tradition—the most junior Justice’s opinion was published first. Nowadays, the dissents always follow the Opinion of the Court. If there are other opinions in the majority, they are published in order of seniority (most senior first), and then any opinions in the dissent (again, most senior first).
John Marshall foresaw that the Court would be stronger if it could speak with one voice and, by force of his will, he persuaded the others to agree. It is a feat as difficult as herding cats. One might think of the individual justices of the Court as a group of prima donnas united only by a common parking lot. Yet, somehow, Marshall was able to bring them all together.
He began this practice in Talbot v. Seeman (1801), the very first case that Chief Justice Marshall decided. The issue was whether Captain Talbot was entitled to any salvage in the ship, The Amelia. Marshall spoke for the Court and there were no dissents.
President Thomas Jefferson, Marshall’s lifelong political enemy, criticized Marshall’s practice. He argued that it limited the accountability of the individual justices. In one letter, for example, he complained that the Opinion of the Court is an opinion “huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge.” Jefferson’s arguments are based on weak factual premises. Marshall’s colleagues on the Court, such as Joseph Story, were hardly lazy or timid. Perhaps Jefferson’s true reason may well have been that he, like Marshall, understood that the Court is more powerful if it can speak with one voice.
Nowadays, seriatim opinions are rare, but they do occur. Van Orden v. Perry (2005) is a modern example. The Supreme Court opinions in Van Orden (along with its companion case, McCreary County v. ACLU) add up to nearly 150 pages in the U.S. Reports. Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion that Justices Scalia, Kennedy, and Thomas joined. Justice Scalia and Thomas also filed concurring opinions. Justice Breyer filed an opinion concurring in the judgment. Justice Stevens filed a dissenting opinion that Justice Ginsburg joined. Justice O’Connor filed a dissenting opinion. Justice Souter filed a dissenting opinion that Justice Stevens and Ginsburg joined. McCreary County v. ACLU was also a 5 to 4 opinion, but this time there was an Opinion of the Court, and Justice Souter delivered it, joined by Justices Stevens, O’Connor, Ginsburg, and Breyer. Justice O’Connor also filed a concurring opinion. Justice Scalia filed a dissenting opinion that Chief Justice Rehnquist and Justice Thomas joined, with Justice Kennedy joining in part.
Van Orden, a homeless man (who was also a former lawyer), sued to enjoin the State of Texas from displaying a 6-foot high monolith inscribed with the Ten Commandments on the grounds surrounding the Texas State Capitol. It was among 21 historical markers and 17 monuments surrounding the Capitol. An inscription on the monument announced that the Fraternal Order of Eagles gave the display. A fragmented Supreme Court upheld the constitutionality of displaying the Ten Commandments in Van Orden, (but not in McCreary) with no majority opinion. Differing alignments of justices said that displays of the Ten Commandments are not per se unconstitutional but the courts will have to resolve the issue on a case-by-case basis.
When the Van Orden Court issued its various opinions, Rehnquist wisecracked before the packed courtroom: “I didn’t know we had that many people on our court.” In the dozen years since Van Orden’s series of opinions, the Court has cited it only five times. This case has not been influential.
John Marshall also introduced the custom of the justices together discussing the case in private, after oral argument. This oral argument might sometimes last for days. Then, the justices would try to form a majority to issue an opinion of the Court (often with Marshall as the author). These procedural reforms are so common now that we do not appreciate that they all began with Marshall. Marshall even persuaded the justices to live in the same rooming house in Washington, D.C., without their families, thus increasing the camaraderie of the Court.
Marshall participated in over 1,000 cases and wrote 519 of the opinions himself. During his more than a third of the century on the Court (34 years), he dissented only eight times and only once in case involving a constitutional issue.
We often think of John Marshall as our greatest chief justice. When we do, we typically look to his majestic opinions. We should not also forget his prosaic changes—ending seriatim opinions, trying to agree to an Opinion of the Court, meeting behind the red velour curtain in private to hash out differences. We now take these procedural changes for granted, but they were crucial in creating the most powerful Court the world has ever known.
There still are some cases with lots of opinions including those without a clear five person majority. Sometimes, the “opinion of the court” is a plurality that does not in significant part have support of a majority. This is seen in Capitol Square Review & Advisory Board v. Pinette, where three justices concur and on a key point agree with the two dissenters. The Supreme Court can do a better job crafting opinions that focus on what a majority agrees with. Sometimes, this results in minimalist opinions open to some criticism but it helps clarify what the law is. Meanwhile, concurring and dissenting justices can write separate opinions to address various points.