63 Pages Posted: 12 Apr 2006
On its official roster of current and former members, the Supreme Court does not list William Cushing as the third Chief Justice of the United States, between Chief Justices John Rutledge and Oliver Ellsworth. It should.
The accepted view is that Cushing - an Associate Justice from 1790 to 1810 - was nominated, confirmed, appointed, and commissioned as Chief Justice in January 1796, but that he declined the job without ever taking the required oaths or taking office. The historical record supports a different conclusion.
In the rough minutes of the Court for February 3 and 4, 1796, the Clerk of the Court records Cushing as Chief Justice - and, as the Documentary History of the United States shows, the Clerk never recorded a person's status as a member of the Court until that person had either taken his oaths in Court or provided proof that he had taken the oaths elsewhere. It is true that the fine minutes of the Court for those two days do not show Cushing as Chief Justice, but Joseph Story's qualifications to be an Associate Justice suffer from a similar problem: his oath-taking is recorded in the rough minutes but not in the fine minutes for February Term 1810. Moreover, there are several other recognized Associate Justices - John Blair, Bushrod Washington, John McKinley, Peter Daniel, John Campbell, and Cushing himself - for whom there is no record at all of the required oath-taking. What is sauce for Associate Justices Story, et al., should be sauce for Chief Justice Cushing.
In addition, the language used by President Washington and the Senate during the appointment process for Cushing's successor, Oliver Ellsworth, reveals that the executive and legislative branches understood Cushing to have been Chief Justice. In particular, they used the word resigned to describe Cushing's departure from the Chief-Justiceship. In a remarkable display of consistency, from 1791 to 1801 the President and Senate invariably used the word resigned in the judicial appointments process when referring to individuals who had entered into and then departed from judicial offices, and the word declined to describe individuals who refused an office without ever entering into it.
Finally, the correspondence of key players in the federal government in 1796 supports the existence of a Cushing Chief-Justiceship. The most striking evidence is a pair of letters sent by John Adams to his wife Abigail, in which his reports of Cushing's agonized deliberations over whether to be Chief Justice track neatly the rough minutes of February 3 and 4 described above.
So Cushing was, briefly, Chief Justice. But there are other issues. First, in a letter to Washington dated February 2, Cushing seeks to avoid the job. But the letter was a draft that was almost certainly never sent, and even more certainly had no effect, as shown by the document itself, the correspondence of John Adams and others, and the absence of any version of the letter or mention of it in the federal government's otherwise rather complete record of appointments to the Court in the mid-1790s.
Second, there is Cushing's return to his Associate-Justiceship - without renomination, reconfirmation, etc. - after being Chief Justice. The only way he could have lawfully returned to being an Associate Justice without running the appointments gantlet again was to retain his Associate-Justiceship while he served as Chief Justice, and it appears that he did just that. Today such a maneuver would be impossible, but the country and its federal government were different then, and in ways that would have made his briefly simultaneous Chief- and Associate-Justiceships constitutional, otherwise legal, and no more unorthodox than several other odd cases in the early republic. The abrogation in the Judiciary Act of 1789 of the doctrine of incompatible offices as it would have applied to members of the Court, and numerous instances of multiple office-holding by Justices and Chief Justices, would also have contributed to the acceptability of Cushing's dual service. Moreover, even if his return to an Associate-Justiceship was defective, it would have no consequences today because his acts as Associate Justice would be valid under the de facto officer doctrine.
Lastly, there is the question of why the government has not noticed the existence of one of its own highest-ranking officeholders. The answer lies in the treatment of John Rutledge, whose Chief-Justiceship also was ignored until the 1850s, when two biographers gathered the evidence and made the case for his occupation of that office. It is only now, with the publication of the Documentary History of the Supreme Court and the development of a number of searchable databases of key documents, that it has become feasible to assemble and organize evidence of Cushing's Chief-Justiceship.
Keywords: William Cushing, Chief Justices, Supreme Court, incompatibility, nominations, oaths
JEL Classification: H11
Suggested Citation: Suggested Citation
Davies, Ross E., William Cushing, Chief Justice of the United States. University of Toledo Law Review, Vol. 37, No. 3, Spring 2006; George Mason Law & Economics Research Paper No. 06-11. Available at SSRN: https://ssrn.com/abstract=896184