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Cushing, William

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Birth: March 1, 1732, Scituate, Massachusetts.

Education: Graduated Harvard, 1751, honorary LL.D., 1785; Yale, honorary A.M., 1753; studied law under Jeremiah Gridley; admitted to the bar in 1755.

Official Positions: Judge, probate court for Lincoln County, Massachusetts (now Maine), 1760–1761; judge, Superior Court of Massachusetts Bay province, 1772–1777; chief justice, Superior Court of the Commonwealth of Massachusetts, 1777–1780, Supreme Judicial Court, 1780–1789; member, Massachusetts Constitutional Convention, 1779; vice president, Massachusetts Convention, which ratified U.S. Constitution, 1788; delegate to Electoral College, 1788.

Supreme Court Service: Nominated associate justice by President George Washington, September 24, 1789; confirmed by the Senate, September 26, 1789, by a voice vote; took judicial oath February 2, 1790; served until September 13, 1810; replaced by Joseph Story, nominated by President James Madison.

Death: September 13, 1810, Scituate, Massachusetts.


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William Cushing
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Noteworthy Opinions

William Cushing

William Cushing served longer with minimal effect than any of the fourteen Supreme Court justices whose terms overlapped his. His lengthy judicial career in Massachusetts made him an obvious, almost automatic, choice by President George Washington. Indeed, on paper, he was the most highly qualified of any of his brethren. It was only after his twenty-one uneventful years on the Court that historians looked back and discovered that there was not a great deal to show for his twenty-nine years on the state bench either—with one possible exception. Legend holds that Cushing proclaimed an end to slavery in Massachusetts in 1783 because it was a violation of the new state constitution. The evidence to support such a claim, however, is scanty and unconvincing.

Cushing seemed to have been born for political influence in Massachusetts. On his mother's side, he descended from the patriarch John Cotton, and his father and grandfather were both judges of the Massachusetts Superior Court. When John Cushing retired after twenty-three years, he was succeeded by William, who had for the past twelve years been register of deeds and judge of probate for a county in the Maine district, as well as that county's only attorney. Cushing was the only judge who was retained when the new state supreme court was formed in 1775. He had endeared himself to the radicals by refusing his salary from the Crown in 1774, yet also managed to remain on friendly terms with loyalists. He was justly described by contemporaries as “remarkable for the secrecy of his opinions.” He was state chief justice from 1777 until his appointment to the U.S. Supreme Court. Cushing seems to have contributed little enlightenment as a member of the convention that wrote the Massachusetts Constitution of 1780, or as vice president of the state convention that ratified the federal Constitution.

Cushing was officially the senior associate justice on the Supreme Court, as well as the oldest of Washington's appointees. John Rutledge was appointed first after Chief Justice John Jay, but he never occupied the second seat. Seniority did not make Cushing more voluble. It may even have had the opposite effect. The justices spoke in reverse seniority, so Cushing preceded only the chief justice. Younger and more creative thinkers would already have expounded on the issues prior to Cushing, so he was often in a position of simply concurring with them. Even before Chief Justice John Marshall persuaded his colleagues to abandon seriatim decisions, Cushing could rationalize his relative silence. President Thomas Jefferson had Cushing primarily in mind when he proposed that the Court be required to return to seriatim decisions, in hopes that it would highlight the weaknesses of the silent majority.

Cushing delivered only nineteen brief opinions during his twenty-one years on the bench, and his decisions were direct, noncomplex, or as some have said, “simple.” If succinctness is a blessing, then Cushing was a saint. He wrote just two sentences in Calder v. Bull (1798), a case which he considered “clear of all difficulty.” He did not even refer to the ex post facto clause. This opinion is an extraordinary example, but even his longer opinions generally deal with a single point. In Ware v. Hylton (1796), a case involving prewar debts owed to British merchants, he focused entirely on the language of the Treaty of 1783, avoiding the discussions of federal relationships, which characterized Justice Samuel Chase's lead opinion. Cushing's first sentence gives an accurate picture of the opinion: “My statement of this case will, agreeable to my view of it, be short.” Chisholm v. Georgia (1793), which upheld the right of a citizen to sue a state in federal court, is regarded as Cushing's best opinion, but it adds nothing significant to the opinions that had preceded it. He declared that the rights of individuals are “as dear and precious as those of states.” He challenged the states that “if the constitution is found inconvenient …., it is well that a regular mode is pointed out for amendment.” Congress and the states quickly initiated that process, which led to the Eleventh Amendment.

Under Marshall, Cushing was called on most often to deal with cases turning on procedural technicalities—frequently issues involving loyalist or British property claims. Sadly, his most impressive later opinion, McIlvaine v. Coxe's Lessee (1808), which established guidelines for naturalization policy, was described by a major historian of the Marshall Court as “well beyond his capacities at that time, and perhaps beyond his professional ability even at a younger age.” Law professor Herbert A. Johnson has speculated that the quality of this opinion, with Cushing's name attached, brings into question “the commonly accepted assumption that delivery of a majority opinion implied authorship of the opinion.”

On circuit in Connecticut, Cushing and John Jay were the first federal judges to invalidate a state law for violation of the Treaty of 1783. On the Supreme Court, he took a unique position on the judicial review of state constitutions. He was the only justice who thought the Supreme Court could void an act in violation of the Georgia constitution (Cooper v. Telfair, 1800). He added, however, that the case did not warrant judicial review because the authority to banish citizens and to confiscate property was inherent in every government and was a matter for legislative, rather than judicial, determination.

President Washington was obviously not disappointed in his senior associate justice. He appointed Cushing chief justice on January 26, 1796, and the Senate, after rejecting John Rutledge, confirmed him the next day. He kept the commission for a week before declining because of age and ill health. Alexander Hamilton and Patrick Henry had also declined before the Cushing appointment, so he was in good company. Sen. William Plumer, F-N.H., was distressed by Cushing's nomination to head the Court:

He is a man I love and esteem. He once possessed firmness and other qualities for that office, but Time, the enemy of man, has much impaired his mental faculties. When Jay resigned, Cushing was the eldest Justice, and I fear that the promotion will form a precedent for making Chief Justice from the eldest Judge though the other candidates may be much better qualified.

Washington next considered Justices William Paterson and James Iredell before looking outside the Court to Oliver Ellsworth. An associate justice would not be advanced to the center chair until 1910, when Edward D. White became chief justice. President John Adams cited the possible offense to Cushing as a reason not to advance Paterson to chief justice in 1801, but that was intended to justify not appointing Paterson rather than to imply serious consideration of Cushing.

Cushing was always dignified, even in his declining years. He was probably the last American judge to wear the full English wig, ceasing only when he realized that this formidable headgear was the reason that scores of New York City boys followed him in the streets. He was well read, both in legal and general literature. His earlier travels to the state courts in a horse-drawn wagon that contained many of the comforts of home, including a library, provisions, and his wife, who read to him as they proceeded, surely contributed to his knowledge. Distances and roads were such for a Supreme Court justice that he had to travel them by horseback, despite his age, to ride his circuit.

Cushing was also remarkably dedicated and conscientious, except when his health impeded him. He set a record for responsibility that can never be matched. He was the one justice who was present on the first day that the Court sat in each of the three capitals of the United States. He was in New York with John Jay and James Wilson when the Court first convened on February 1, 1790; he was in Philadelphia with three others when they first met there one year later; and he was the only one who reported for duty in Washington, D.C., at the beginning of the February 1801 term.

When Justice Iredell complained about the unfairness of being confined to the distant southern circuit, Cushing characteristically replied that he would do his share, whatever the rotation. He was too optimistic when he consoled Iredell that “the System may ere long meet with a legislative remedy.” Indeed, the chief justice had asked him to negotiate with Congress to lessen the burden of circuit riding. He suggested that cases should be heard at the capital, rather than at the periphery, which would have improved the lives of six Supreme Court justices, while placing a severe burden on many litigants and their counsel. It is indicative of Cushing's sense of duty that in 1790 he delayed the acceptance of his appointment to the Supreme Court so that he could make one last circuit in the state courts to ensure that they met.

Generally good spirited both on and off the bench, Cushing was never as partisan as most of his colleagues. His peak of extremism came in 1798, when he warned the grand jury in Virginia about a French “plot against the rights of Nations and of mankind and against all religion and virtue, order and decency.”

Sadly, Cushing had no private fortune and was forced to remain too long on the Court in order to keep his salary. He had never been notably successful as an attorney, so he had no legal practice to rely on for survival. Not an outstanding judge either, Cushing remained long enough to justify Justice William Johnson's characterization of him twelve years after his death as “incompetent.” Perhaps the best assessment of the senior associate justice was expressed fourteen years before he died, by Senator Plumer, who considered Cushing a friend. Plumer described the retiring John Blair, who had certainly been no star on the Supreme Court, as “a man of good abilities, not indeed a Jay, but far superior to Cushing.”

Bibliography

The best published review of Cushing's career is Herbert A. Johnson's essay in Friedman and Israel, Justices vol. 1, 57. John Cushing's unpublished doctoral dissertation, “A Revolutionary Conservative: The Public Life of William Cushing, 1732–1810” (Clark University, 1960), is thorough, critical, and valuable. His article “The Cushing Court and the Abolition of Slavery in Massachusetts,” American Journal of Legal History 5 (1961): 118, takes a dim view of Cushing's leadership on this issue. Dated, but still useful, is Arthur P. Rugg, “William Cushing,” Yale Law Journal 30 (1920): 120.

Noteworthy Opinions

Chisholm v. Georgia, 2 U.S. 419 (1793)

Ware v. Hylton, 3 U.S. 199 (1796)

McIlvaine v. Coxe's Lessee, 6 U.S. 280 (1808)

 

Document Citation
Cushing, William, in Biographical Encyclopedia of the Supreme Court 151 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18166-979174.
Document ID: bioenc-427-18166-979174
Document URL: http://library.cqpress.com/scc/bioenc-427-18166-979174