In terms of the court's functioning, he has allowed the conservative bloc to return to something like the
seriatim opinion, producing decisions that begin like this gem in Adarand Constructors v.
(36) Marshall brought the practice of
seriatim opinion writing to an abrupt end: of the sixty-seven non-per curiam opinions issued by the Court between 1801 and 1806, Marshall's name alone was attached to sixty; the remaining decisions were delivered by another Justice or in the seriatim style, but only due to Marshall's absence or recusal from the matter.
The order in which the
seriatim opinions were published (and apparently delivered) was strictly by reverse seniority, with the most junior Justice (James Iredell or William Paterson) delivering his opinion first and Chief Justice Jay delivering his last.
In its early years, after the adoption of the Judiciary Act of 1789, the Court, following the practice of English common-law courts--specifically the King's Bench--typically rendered decisions in the form of per curiam and
seriatim opinions. (24) The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality.
(43) For example, Professor David Currie noted the difficulty posed in extracting a holding from the
seriatim opinions in the early and still important case of Calder v Bull (1798) 3 U.S.
(114) Over the next 50 years, individual,
seriatim opinions were gradually faded out, but dissenting opinions nonetheless remained.
The English judiciary has a tradition of
seriatim opinions to decide a case in which each judge offers his or her own opinion.
(51) Chief Justice Marshall bolstered the Court's authority by eliminating its practice of issuing
seriatim opinions, and instituting a new practice of announcing the Court's judgment in a single opinion of the Court.
power to require the justices to file
seriatim opinions in all cases.
The actual origin of the Supreme Court's seriatim practice is something of a mystery--perhaps the Court was following the model of some colonial or state courts--but in any event, it is obvious that the use of
seriatim opinions limited the Chief Justice's ability to take the Court in any particular direction.
(13) His arguments in respect of institutional efforts to cement the Court with the rule of law have very limited relevance to the Australian context where the High Court's use of
seriatim opinions far outstrips the occurrence of unanimity.
The institutional approach to the Court would not be possible had Chief Justice Marshall not introduced the practice of announcing a single authoritative "opinion of the Court." For most of the Court's first decade, it followed the practice of the King's Bench: Each of the Justices delivered a separate opinion stating his own view of how the case should be decided.(11) Marshall abandoned the practice of delivering
seriatim opinions in the first case decided after he became Chief Justice.(12) In that case, and in many that followed, instead of the opinions of the five Justices then on the bench,(13) a single opinion was announced, with the heading: "Marshall, Ch.
