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Early Courtship

As Benjamin Franklin and his Pennsylvania Society for the Abolition of Slavery was polishing up its petition to the first Congress pleading with them to pay serious attention to the issue of slavery and to work to the limits of their powers to abolish the trafficking in human beings and institution of chattel slavery overall, George Washington was making himself comfortable in the nation’s temporary capital of New York City. He was planning to move from the home he had been occupying to that of Alexander Macomb – a lavish house with high ceilings, large enough to house the president’s staff and dignitaries who came to meet with the leader of the new nation. It was lovely, overlooking the Hudson River.


In the meantime, he rented the elegant home of Samuel Osgood. It was there, in early February, that John Blair paid him a visit. Blair was one of the new Supreme Court Justices, recently appointed. No president before or since has appointed as many justices to the Supreme Court of the United States as George Washington.


234 years ago this week, the first group of these Justices met, also in New York. We have no idea what they talked about since they had no cases filed before them yet. Truthfully, this first Court will not have too many issues to decide. Rather than the 9 Justices we have today, this first Court was comprised of 6 men. Who were they?


John Jay – Federalist Party (NY) – the first Chief Justice who, along with John Adams and Benjamin Franklin, negotiated the Treaty of Paris ending the Revolutionary War. Prior to that he had been an attorney and active in revolutionary activities including serving as a delegate to the Continental Congress and diplomatic roles. His views on slavery, like many of the Founders, were complex. His wealth came, in part, from his father's investment in chattel slavery. He himself owned several human beings. But, he also founded the New York Manumission Society and spoke eloquently about the right of every person to freedom. He was a political animal in many ways and actually spent time, even as Chief Justice, running to be Governor of New York. When he won that election in 1795, he resigned his seat. After 5 years on the relatively quiet bench and then an additional 5 years as Governor, he ultimately retired to his books in the country for the last nearly 30 years of his life.


John Blair, Jr. - Federalist Party (VA) - Blair grew up in opulence and politics. He studied law in England and became an attorney, an elected official, and ultimately a judge in his native Virginia. He was instrumental in drafting the Constitution for the Commonwealth of Virginia. He came from a prominent family of enslavers and also enslaved people; it is unclear if he had any views, generally, on the institution. As a jurist in Virginia, he established the principle that the highest court could invalidate legislative acts as unconstitutional which would foreshadow the decision authored by fellow Virginian John Marshall in Marbury v. Madison. Blair served only six years on the high bench. He resigned due to health reasons and retired to his home where he died in 1800.


William Cushing - Federalist Party (MA) - Although he would not be a significant voice on the Supreme Court, one decision prior to his elevation to federal court is one of the most significant certainly in Massachusetts history, but also in these United States. It was Judge Cushing who ruled, in Commonwealth v. Jennison (often referred to as the Quock Walker case), that the new Constitution of the Commonwealth of Massachusetts prohibited slavery. He was also Chief Justice on the Supreme Judicial Court of Massachusetts during the violent and unruly Shay's Rebellion when he managed to keep the courts open and calm the situation. His time on the Supreme Court was relatively uneventful. He served as an associate justice until he died in 1810.


John Rutledge - Federalist Party (SC) - Prior to the Revolution, Rutledge was a prosperous attorney from a prominent South Carolina family. Although he suffered from health concerns, he was a fiery and ardent public speaker who was not shy about voicing his opinions. Indeed, his health kept him from serving much on the Court and he is not known for any significant opinions. He is, perhaps, best known for opposing "Jay's Treaty" in 1795. The treaty was to settle some continuing issues after the end of the war and Rutledge found the text far too submissive. So, he made public his concerns in what was seen by his peers as an unhinged response. In part of his speech, he declared that he would rather see the president dead than have him sign the treaty which is kind of extreme. Indeed, it kept him from the position he coveted - Jay's seat as Chief Justice. Washington appointed him as interim Chief Justice during a recess, but the Senate denied him the post. He was, therefore, both the first interim appointment to the bench and the first court nominee to be rejected by the Senate. He died in 1800 in Charleston, South Carolina, where he is buried.


Justice Rutledge rabbit hole: One of the most interesting things about this colorful man was his wife's family. John Rutledge married Elizabeth Grimke in 1763. Both John and Elizabeth were enslavers. However, Elizabeth manumitted her slaves. She was cousins with the incredible abolitionist and feminist Grimke sisters, Sarah and Angelina, who may have inspired her actions. John enslaved 60 people prior to the American Revolution. After the war, he enslaved 28. By the time of his death in 1800, he enslaved one person. It would be so interesting to understand his thoughts on the institution of slavery. Unfortunately, he did not really talk about it. His actions may speak louder than words.


James Wilson - Federalist Party (PA) - Scottish born and signer of the Declaration of Independence, Wilson was widely considered to be a brilliant lawyer. Indeed, he was an architect of the Constitution and contributed greatly to Article II - including (though supposedly against his own opinion) the creation of the Electoral College. His views on slavery, again like many of his peers, was murky. He stated his opposition, yet enslaved a man at home. At his wife's request, however, he freed his slave, Purcell, in 1794. Wilson split his time while a jurist with duties as a professor as well as speculation in land. The latter of these landed him in financial debt. He would spend some of his time as a justice on the Supreme Court in debtor's prison or riding circuit to avoid creditors. He died of a stroke at the age of 55 and was ultimately buried in Philadelphia.


Robert Hanson Harrison - Federalist Party (MD) - Born in Maryland, Harrison served in the militia from Fairfax County, VA in the Revolutionary War. He was aide de camp to Washington during the war, but left the military after his father died. Harrison was appointed as an associate justice on the Court, but declined the post and never served, due to illness. He died in 1790.


James Iredell - Federalist Party (NC) - When Harrison declined the post, President Washington nominated British born James Iredell of North Carolina. Justice Iredell seems to be the sole member of the early Court who was the strictest constructionist of the Constitution harboring no concerns about the notion of "fairness" or what some might term "justice". Although he served for roughly a decade, his largest contribution to jurisprudence was a dissent in Chisholm v. Georgia. His dissenting opinion ultimately became the Eleventh Amendment to the United States Constitution barring states from being sued without consent. He died young, at the age of 48, in 1799.


So, those are the original six justices who met 234 years ago this week for the first time as a Court in New York City. The majestic Supreme Court building giving a home to the bench would not be constructed for 145 years - it opened in 1935, after several more wars, including a Civil War, which would forever change the Constitution and the understanding of what it means to be an American citizen. It's hard to say that any of these original six justices was a towering legal mind or made a deep impression in American jurisprudence. But, that is partly because the Court should not hold the place it holds today where people fear new appointments as they nervously wait for nine unelected people to make consequential decisions for millions of people in an otherwise representative democracy.

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