William Cushing (March 1, 1732 – September 13, 1810) was an early Associate Justice of the United States Supreme Court, from its inception to his death. He was the longest-serving of the Court's original members, sitting on the bench for 21 years. Had he accepted George Washington's appointment, he would have become the third Chief Justice of the United States.
Youth and early career
Born in Scituate Massachusetts to a family which had settled in adjacent Hingham in 1638, Cushing graduated from Harvard College in 1751 and became a member of the bar in Boston in 1755. Cushing's family was among the earliest settlers of Hingham. Although his family had a history of attorneyship, he seemed to have had a hard time at the beginning of his career. During that time, as well, his father, John Cushing, served on the Massachusetts Superior Court of Judicature for about 24 years. When his father resigned in 1771, Cushing took his position on the Court. However, when the American Revolution started, he had to choose between the rebels and Great Britain; unlike the rest of the court, he chose the rebels.
His work with state and federal constitutions
In 1783, Cushing presided over a criminal action that virtually abolished slavery in Massachusetts, citing the 1780 Constitution of Massachusetts's statement that "all men are born free and equal". During Shays' Rebellion, he made sure that court sessions continued, despite the aggressive protests of the armed rebels. He later presided over the trial against the rebels. A year later, in 1788, he was vice president of the Convention of the Commonwealth of Massachusetts, which narrowly ratified the Constitution.[1]
Supreme Court appointment
When George Washington became President of the United States, Cushing was among Washington's first choices for Supreme Court justices. He was nominated on September 24, 1789, and confirmed by the Senate two days later. Although Cushing became Washington's longest serving Supreme Court appointment, only 19 of his decisions appear in the case reporters, mainly due to frequent travels and failing health, as well as the incompleteness of the case reports of the era. He generally held a nationalist view typically in line with the views of the Federalist Party, and often disagreed with Thomas Jefferson's Democratic-Republicans. His two most important decisions were probably Chisholm v. Georgia and Ware v. Hylton, which regarded intrastate suits and the supremacy of treaties.
Cushing administered the oath of office at Washington's second inauguration as president.
The third Chief Justice?
When John Jay resigned from the Court in 1795, Washington was faced with the task of appointing a new chief justice. His first choice was John Rutledge, but the Senate rejected the nomination. Rutledge still served as chief justice, however, by recess appointment.
Washington subsequently nominated Cushing on January 26, 1796; the Senate unanimously confirmed the nomination. An unverified story tells of a diplomatic dinner party the night of the Senate's confirmation vote, where Washington accoladed Cushing as the Chief Justice of the United States, asking Cushing to sit in the seat to Washington's right, much to Cushing's surprise.[2] The following day, Washington signed and dispatched Cushing's commission.
Cushing received his commission on January 27, but returned it to Washington on February 2.[3] An error in the rough minutes of the Court on February 3 and 4, 1796 lists Cushing as Chief Justice, although this entry was later crossed out. This error can be explained by the text of the Judiciary Act of 1789,[4] which allowed for the Court to hear cases with a quorum of only four justices; that is, the chief justice need not always be present for the Court to conduct business. As Cushing was the most senior Associate Justice present on those dates, he would have been expected to preside over the proceedings.
Washington then nominated Oliver Ellsworth to be chief justice, transmitting the nomination to the Senate in a March 3 message stating that Ellsworth would replace "William Cushing, resigned."[5] Subsequent histories of the Court have not counted Cushing as a chief justice, but instead report that he declined the appointment. This latter explanation is more logical, in that had Cushing accepted the office of chief justice and then resigned, he would have had to leave the court entirely; accepting the chief justice seat would have implicitly required Cushing to resign his place as an Associate Justice. The fact that he continued on the Court as an Associate Justice for years afterward lends more weight to the assertion that Cushing declined. Additionally, Cushing's February 2 letter explicitly states his return of the commission for chief justice, and his desire to retain his seat as Associate Justice.[3]
Death and legacy
Cushing died in Scituate in 1810. His remains are interred at a small cemetery that is also a small state park. His wife would have preferred that he be burried at the Norwell Congregational Church but he insisted on being buried in his hometown, Scituate, MA.[6]
References
- Marcus, Maeva; Perry, James R., eds. (1985), The Documentary History of the Supreme Court of the United States, 1789-1800, 1, New York, NY: Columbia University Press
- Ross E. Davies: "William Cushing, Chief Justice of the United States", University of Toledo Law Review, Vol. 37, No. 3, Spring 2006
- Tony Mauro: "The Chief Justice Who Wasn't There", Legal Times (September 19, 2005)
Notes
Further reading
- Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3.
- Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267.
- Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774.
- Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356.
- Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543.
- Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761.
See also
External links
