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Johnson, William

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Birth: December 27, 1771, Charleston, South Carolina.

Education: Graduated Princeton, 1790; studied law under Charles Cotesworth Pinckney; admitted to bar in 1793.

Official Positions: Member, South Carolina House of Representatives, 1794–1798; speaker, 1798; judge, Court of Common Pleas, 1799–1804.

Supreme Court Service: Nominated associate justice by President Thomas Jefferson, March 22, 1804, to replace Alfred Moore, who had resigned; confirmed by the Senate, March 24, 1804, by a voice vote; took judicial oath May 7, 1804; served until August 4, 1834; replaced by James M. Wayne, nominated by President Andrew Jackson.

Death: August 4, 1834, Brooklyn, New York.

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William Johnson
Noteworthy Opinions

William Johnson

William Johnson, the great dissenter of the early Republic, embodied the American dream. Born to blacksmith William Johnson and Sarah Nightingale Johnson, young William went to grammar school in Charleston, completed studies at Princeton University by 1790, read law with South Carolina's renowned lawyer-diplomat Charles Pinckney, and in 1793 gained admission to the Charleston bar. Johnson rose to power with dazzling speed. Once admitted to the bar, he was elected to the South Carolina House of Representatives; by March 1794 he had married and established himself as a society figure, a reliable and colorful Jeffersonian Republican, and a confidant of the master of Monticello. Johnson served as House secretary and speaker and judge of the South Carolina Constitutional Court; at age thirty-two, he accepted Thomas Jefferson's nomination to the U.S. Supreme Court, replacing the ineffectual North Carolinian Alfred Moore.

Chief Justice John Marshall's young associate relished a good scrap, but he also found it necessary to cooperate with his brethren. As he explained in an 1822 letter: “I found that I must either submit to circumstances or become such a cipher …. as to effect no good at all. I therefore bent to the current.” In 1807 Johnson infuriated Jefferson by relying on—and therefore granting credence to—Marshall's ruling in Marbury v. Madison (1803) to protest the Court's grant of a writ of mandamus in the treason trial of Aaron Burr. A year later on circuit, Johnson—apprehending presidential overreach—refused in Gilchrist v. Collector of Charleston (1808) to allow the detention of Gilchrist's vessel, as Republican embargo policies required. Family legend has it that Johnson personally boarded several vessels and issued sailing orders. In his decision of May 28, 1808, he insisted that federal officers never were justified, at the bidding of the executive, to increase “restraints upon commerce”; presidents and collectors were “equally subjected to legal restraint” and so “equally incapable” of “an unsanctioned encroachment upon individual liberty.”

Attorney General Caesar Rodney promptly denounced Johnson as a Jeffersonian imposter suffering from “leprosy of the bench,” but that judgment was premature. During and after the War of 1812, Johnson came to blows repeatedly with Justice Joseph Story; within a few years, the two men barely spoke. By Story's lights, republicanism required a sturdy, if mutable system of federal law (including an energetic system of admiralty courts and federal criminal jurisdiction) to ensure public morality as capitalists and crooks swarmed over the American continent. Johnson preferred to rely on state courts in criminal cases, and he feared federal tyranny (symbolized for him by the specter of admiralty courts in places like Louisville, Kentucky) more than the moral corruption associated with scrambles for wealth. In United States v. Hudson (1812) and Goodwin (1812), he refused to grant federal jurisdiction in criminal cases; Story dissented and ignored Hudson on circuit. Similarly, in Ramsey v. Allegre (1827), Johnson resisted attempts to modify the English “ebb and flow of the tide” doctrine, which limited admiralty jurisdiction to salt water, in order to expand federal authority to inland waterways without the constitutional amendment demanded by critics.

Johnson also perceived tyranny in the attempt by business corporations to persuade judges of their organizational identity with stockholders, whose collective rights and immunities then could be ascribed to a corporate “person.” Johnson contended, for example, in his 1808 Bank of the United States v. Deveaux circuit court opinion, that banking corporations possessed neither standing nor a right to sue in federal courts. He went along with John Marshall in McCulloch v. Maryland (1819); and five years later, in Osborn v. Bank of the United States (1824), he supported congressional power under the necessary and proper clause to create a bank, in part because he exalted Congress—described by him in Anderson v. Dunn (1821) as a “deliberate assembly, clothed with the majesty of the people.”

Yet even as he ac-knowledged congressional power to erect a bank in Osborn, he blasted Marshall's partial grant of rights and immunities to artificial persons. Indeed, as his Osborn position makes clear, Johnson dis-tinguished continually between mindless support for malignant combinations (runaway government, corporations, banks) and support for congressional aid to free-wheeling capitalism. He particularly encouraged national legislation to empower states, maintain social stability, break down barriers between regions, facilitate free trade, and build transportation networks—the “arteries” and “veins” of an extensive body politic. He therefore denounced James Monroe's veto of the Cumberland Road Act in 1822 and joined the centrist majority in Martin v. Hunter's Lessee (1816), with its ringing affirmation of the Court's authority under Section 25 of the 1789 Judiciary Act to review state court decisions whenever they touched federal statutes or treaties. Johnson also acquiesced in Marshall's anti-Jacksonian Cherokee Nation v. Georgia (1831), which condemned Indian removal policies and state meddling with settled indigenous communities protected by treaty.

Johnson laid out some of the elements of this selectively nationalist philosophy in his concurring opinion in Gibbons v. Ogden (1824), the “steamboat case” testing the validity of a New York grant of monopoly to the Fulton-Livingston company to run boats exclusively on the Hudson River. Brushing aside state warnings about the imminent collapse of the Republic, Marshall toyed with but ultimately rejected Daniel Webster's “exclusivity” principle—the idea that Congress, under the commerce clause, might regulate new commercial subjects (such as steamboats) and persons (possibly including fugitive slaves) as well as the interstate exchange of goods. Marshall feared southern resistance to exclusivity and so held, less radically, that steamboat traffic on interstate rivers fell easily within Congress's established power to control navigation.

Johnson felt no such inhibition. Heedless of southern opposition and armed to the teeth with constitutional convention proceedings and the law of nations, he chided Marshall for unwarranted timidity: “The power of a sovereign state over commerce …. must be exclusive,” residing in only “one potentate; and hence the grant of this power carries with it the whole subject, leaving nothing for the state to act upon.”

As the Gibbons opinion suggests, Johnson was ambivalent about complete state control over slavery—perhaps because, as he stated, he opposed absolute state authority over labor and other resources; nor did he worry, with Americans a decade later, that Congress might wield regulatory power to aid fugitive slaves or destroy property rights in persons. He was a slaveholder and opposed abolition, but he also opposed the inhumane treatment of Africans, whether free or bonded. From 1822 to 1824 he tarnished his reputation in South Carolina, first, by sharply criticizing state denial of due process to slave rebel Denmark Vesey; second, by declaring in his 1823 circuit court opinion in Elkison v. Deliesseline that South Carolina's Negro Seaman Act, which barred black American sailors from Charleston and other harbors, was a violation of the civil rights of free blacks seeking trade in the state; and, third, by opposing South Carolina's notorious nullification of the so-called tariff of abominations, again (as he explained in Osborn) because he viewed the federal Constitution as an economic document designed to eradicate the Confederation's “Congress of Ambassadors” as well as an unfruitful localism in commerce.

In cases involving the contract clause, Johnson exhibited a markedly thinner skin. Before the Panic of 1819, Marshall had written opinions in contract cases to accommodate dissenting views, and Johnson could therefore join the majority in Dartmouth College v. Woodward and Sturges v. Crowninshield, both decided in 1819. But as a states' rights rebellion gained force in the West and South, Johnson sounded an alarm. In 1823 he wrote a poignant, politically devastating concurrence in Green v. Biddle, in which Story and Bushrod Washington wielded the contract clause against Kentucky's occupying claimant laws to force state compliance with an agreement struck between Kentucky and Virginia in 1792. In Green, Johnson distinguished between the law of the case (which, he grudgingly concluded, supported the result) and the decidedly antirepublican tenor of a bench that refused to forge rules appropriate to new, non-English situations. On the one hand, he pointed to provisions of the state constitution outlawing the taking of property without due process or compensation as solid ground for invalidating the occupant laws, and he said the Court was overreaching for no good reason. On the other hand, he condemned his colleagues for destroying the property rights of occupants without jury trial. Ever the champion of free-trading republicanism, Johnson simply could not abide Court support for the antirepublican bankers, speculators, and corporatizers served so well by Green; moreover, federal jurisdiction had been expanded at the expense of an assembly rightly concerned about its lack of control over land titling.

In Green, Johnson probably reached the end of his unionist tether. While “groping [his] way through the labyrinth” of land and contract law toward his brilliant Green opinion, he began to cut himself loose from juridical convention. After 1819 his opinions evince a sea change, away from abstract reasoning rooted in international law, political theory, and natural law and toward a concrete, community-centered jurisprudence capable of reflecting diverse measures of fairness without collapsing into relativism. Johnson, in other words, unwittingly began to pave the way for the economic policies and “dual federalism” of the later Taney Court. Not surprisingly, he often expressed his views in dissent. His apprehensions about judicial support for bankers and other unproductive “nabobs,” and his conviction that public morality in economic life depended to a great extent on local control over remedial legislation, underlay his opinion in Ogden v. Saunders (1827), in which he supported, to Marshall's horror, a state prohibition of endless claims by creditors against insolvents; characteristically, and in the name of union, he drew the line at New York's discharge of obligations to out-of-state creditors.

The prolific Johnson served almost three decades on the federal bench, and, not counting circuit court rulings, he wrote 112 opinions for majorities, 21 concurring opinions, 34 dissents, and 5 per curiam opinions. Only Marshall and Story outdid him. He was castigated regularly—by Federalists for his support of state legislative power and by Jeffersonians for attacks upon executive “tyranny” or radical antiunionism.

Johnson surely could be a loose cannon. As his remarkable Ogden and Green concurrences make clear, he viewed opinions as occasions for experimentation. He admitted impetuousness and often devoted days or weeks to land speculation or nonjudicial writing, such as a two-volume biography of Nathanael Greene. Yet he was also an engaged and engaging jurist with an uncommon capacity for surprise; only enemies, such as John Quincy Adams, thought of him as “restive, turbulent, hot-headed, [and] flaringly independent.”

In the end, it is of small moment that Johnson alienated Court reporters or pigheadedly refused to admit obvious mistakes. Johnson's legacy rests with written evidence of a formidable legal imagination—in opinions, in his richly technical correspondence with Jefferson, and in published replies to critics. Arguably, Johnson established the dissent as a legitimate component of American constitutional discourse. He also articulated a strikingly modern, rights-centered vision of the role of federal courts. When Attorney General Rodney publicly shredded Johnson's Gilchrist opinion, the judge took to his pen; no better summary of his philosophy exists than the one written in self-defense. “In a country where laws govern,” said Johnson, “courts of justice necessarily are the medium of action and reaction between the government and the governed. The basis of individual security and the bond of union between the ruler and the citizen must ever be found in a judiciary sufficiently independent to disregard the will of power, and sufficiently energetic to secure to the citizen the full enjoyment of his rights.”


The standard biography is Donald G. Morgan, Justice William Johnson: The First Dissenter (1954); short sketches include Donald G. Morgan, “William Johnson,” in Friedman and Israel, Justices, vol. 1, 355; and Sandra F. VanBurkleo, “William Johnson,” in Kermit Hall, ed., Oxford Companion to the Supreme Court of the United States (1992), 449–450. See also Herbert A. Johnson, “The Constitutional Thought of William Johnson,” South Carolina Historical Magazine 89 (1988): 132; and Timothy Huebner, “Divided Loyalties: Justice William Johnson and the Rise of Disunion in South Carolina, 1822–1834,” Journal of Supreme Court History (1995): 19.

For Johnson within the context of the Marshall Court and his times, see two volumes of the Holmes Devise History, George Haskins and Herbert Johnson, Foundations of Power: John Marshall, 1801–1815 (1981); and G. Edward White, The Marshall Court and Cultural Change, 1815–1835 (1991).

Noteworthy Opinions

United States v. Hudson, 11 U.S. 32 (1812)

United States v. Goodwin, 11 U.S. 108 (1812)

Green v. Biddle, 21 U.S. 1 (1823) (Concurrence)

Gibbons v. Ogden, 22 U.S. 1 (1824) (Concurrence)

Osborn v. Bank of the United States, 22 U.S. 738 (1824) (Concurrence)

Ogden v. Saunders, 25 U.S. 213 (1827)


Document Citation
Johnson, William, in Biographical Encyclopedia of the Supreme Court 303 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18167-979325
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