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Bushrod Washington served on the U.S. Supreme Court as an associate justice from 1798 to 1829. A strong Federalist and able jurist, Washington was tolerant and well-liked by other members of the bar. His reputation, though respectable, might shine more brightly today if it was not overshadowed by that of his contemporary and friend, Chief Justice John Marshall. Washington concurred with Marshall's opinions so often that jokes were made about them being one justice. Although he wrote a handful of significant opinions on contract law, Washington is remembered primarily as a stalwart supporter of the chief justice.
Born on June 5, 1762, in Westmoreland County, Virginia, Washington enjoyed the benefits of an aristocratic life. He was a nephew of George Washington, the nation's first president, and the two were close. He inherited the president's estate at Mount Vernon. Tutored at home in his childhood, Washington later attended the College of William and Mary, graduating in 1778. He studied law privately until 1781 and then served in the Revolutionary War. In 1784 he was admitted to the Virginia bar.
Washington first practiced law in Alexandria, Virginia, where he also became involved in politics. In these early years of the young lawyer's life, he specialized in chancery cases—typical lawsuits under the now-antiquated system of Equity law. Yet he had an eager mind and kept expanding the range of his experience. He became a keen supporter of Federalism, embracing its belief in strong federal government, and in 1787 won election to the Virginia House of Delegates. In 1788, as the nation was preparing to ratify the Constitution, he served as a delegate to Virginia's ratifying convention. By the late 1790s, Washington had established his own practice in Richmond, trained numerous lawyers, and written two enormous volumes of reports on cases as a recorder for the state's court of appeals. His legal and political experience prompted President John Adams to appoint him to the Supreme Court in 1798.
On the Court, Washington almost always followed the lead of Chief Justice Marshall. The two had been friends since their student days and shared political sympathies. Marshall, widely viewed as the greatest leader of the Court in history, was also an ardent judicial Federalist. Only three times did Washington vote differently from Marshall, and only once did he attach a concurring opinion to the chief justice's opinion. This was in dartmouth college v. woodward, 17 U.S. (4 Wheat.) 518, 4 L. Ed. 629 (1819), a landmark case that upheld the inviolability of contracts. Washington's cautious concurrence sought to limit the implications of the decision.
If the two men differed philosophically, it was only by degree. Washington wished to avoid conflicts with States' Rights whenever possible. He dissented only twice during thirty-one years on the Court. In fact, as a trusted supporter of the chief justice during the early tumultuous years of Marshall's tenure, he even went so far as to discourage his colleagues from writing dissents when ordinary issues were involved.
Washington also made independent contributions to the Court. He wrote the first part of the decision in Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 6 L. Ed. 606 (1827), which stated that any law passed before the execution of a contract is a valid part of that contract. He was noted for his fairness while "circuit riding"—traveling and performing the duties of a circuit judge, a routine though difficult task for Supreme Court justices in the early nineteenth century.
Washington died in Philadelphia on November 26, 1829.
"It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt."
Faber, David A. 2000. "Justice Bushrod Washington and the Age of Discovery in American Law." West Virginia Law Review 102 (summer).