William Cushing

For other people named William Cushing, see William Cushing (disambiguation).

William Cushing
Associate Justice of the United States Supreme Court
In office September 26, 1789 – September 13, 1810
Nominated by	George Washington
Preceded by	None (inaugural officeholder)
Succeeded by	Joseph Story
Personal details
Born	March 1, 1732(1732-03-01) Scituate, Massachusetts
Died	September 13, 1810(1810-09-13) (aged 78) Scituate, Massachusetts
Religion	Unitarian
Signature

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.

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 faced the task of appointing a new Chief Justice. Washington appointed John Rutledge on July 1, 1795 during a Senate recess, during which time Rutledge served by recess appointment. On December 15, 1795, during the Senate's next session, it rejected Rutledge's nomination.

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 gave Cushing accolades as the Chief Justice of the United States, asking Cushing to sit in the seat to Washington's right, much to Cushing's surprise. 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, declining appointment. 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, 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." Subsequent histories of the Court have not counted Cushing as Chief Justice, but instead report that he declined the appointment. Had Cushing accepted promotion to Chief Justice and then resigned, he would have had to leave the court entirely; accepting the appointment would have implicitly required Cushing to resign his place as Associate Justice. That he continued on the Court as an Associate Justice for years afterward lends weight to the assertion that Cushing declined promotion. Additionally, Cushing's February 2 letter explicitly stated his return of the commission for Chief Justice, and his desire to retain his seat as Associate Justice.

Death and legacy

In 1810, Cushing died in his hometown of Scituate, Massachusetts. He is buried in a small cemetery there which is also a small state park. His wife would have preferred that he be buried at the Norwell Congregational Church but he insisted on being buried in Scituate.

See also

List of Justices of the Supreme Court of the United States List of United States Chief Justices by time in office

List of U.S. Supreme Court Justices by time in office United States Supreme Court cases during the Ellsworth Court

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)

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. 
• Flanders, Henry. The Lives and Times of the Chief Justices of the United States Supreme Court. Philadelphia: J. B. Lippincott & Co., 1874 at Google Books.
• 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. 

External links

• Michael Lariens, William Cushing Biography.
• Oyez, U.S. Supreme Court media, William Cushing Biography.
• Supreme Court Historical Society, William Cushing.
• William Cushing at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.

Legal offices
New seat	Chief Justice of the Massachusetts Supreme Judicial Court 1782-1789	Succeeded by Nathaniel Peaslee Sargent
New seat Created by the Judiciary Act of 1789	Associate Justice of the Supreme Court of the United States 1790-1810	Succeeded by Joseph Story