In my research on Justice Bushrod Washington, which I’ll discuss in some upcoming posts, I came across a curious piece of trivia. How many times was John Marshall reversed by the Supreme Court? The answer is once, in The Adventure, 12 U.S. (8 Cranch.) 221 (1814).
How could this have occurred? The answer is that in C.J. Marshall’s day the Justices “rode circuit” conducting trials and hearing appeals. (Chief Justice Marshall’s circuit was Virginia.) Appeals from these circuit court decisions were sometimes heard by the Supreme Court, and the Justice who sat below sometimes participated in the appeal. This is strange by modern standards, but to do otherwise would have almost always left the Court a man down in cases coming from the federal system as it was structured following the repeal of the Judiciary Act of 1801. Even odder, a Justice sometimes ended up reversing himself. Given that the Court in Marshall’s day usually operated by consensus, the Justice who sat below often joined a decision overturning his ruling below.
The Adventure was a maritime salvage case where Marshall ruled as a circuit judge that an award was justified for the capture of a British vessel on the high seas. (He based his decision on an Act of Congress.) In the Supreme Court, however, an argument not considered below was made; namely, that the salvage award should be reduced and that the rest of the proceeds should be put in escrow for the British owners. Justice Johnson adopted this position in an opinion that Marshall joined.