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.
During the tenure of Chief Justice Oliver Ellsworth (1796-1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801-1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson.
(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.
2235, 2238-39 (1996) (explaining Chief Justice Marshall introduced an "institutional approach" to the Court); Whaley, supra note 3, at 370 (observing Chief Justice Marshall "put an immediate end to" seriatim opinions
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.
(13) In many cases, there were no official statements of the Court's reasoning at all, (14) and, where we do have seriatim opinions
, they represent each Justice's comments on the case--usually brief ones, as far as we can tell.
(29) A summary order stating the Court's overall disposition of the case would sometimes follow the seriatim opinions
. (30) Second, opinions would sometimes be filed simply under the heading "By the Court," although this method was generally reserved for uncomplicated cases in which the Court was unanimous or little legal reasoning was required.
He worried that if the Justices scattered, the consequence would be many undecided cases and "seriatim opinions
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.