Filling the New England Seat on the U.S. Supreme Court

For more than a century the U.S. Supreme Court had a seat reserved for New Englanders.

The early Presidents had two good reasons for that. First, by appointing justices equally from all regions of the country those Presidents—especially all those Virginians—avoided charges of favoring their home region.

Second, in its early years the Supreme Court justices also rode circuit, hearing federal cases in their districts. So a New Englander covering the northeastern states wasn’t so far away from home.

For the first two decades, that New Englander was William Cushing, formerly chief justice in Massachusetts. In 1795 President George Washington promoted him to be the chief justice, and the Senate confirmed him. But Cushing declined the commission. Being chief justice just wasn’t as prestigious and powerful as the job has become.

Justice Cushing remained on the bench longer than any of the other original court. He was also the last to wear the full judicial wig inherited from the British system. When Cushing died in 1810, President James Madison needed a replacement from New England. He also wanted someone from his own Republican party. Which was difficult because most New England lawyers were Federalists.

Madison’s first choice was Levi Lincoln of Hingham—former U.S. attorney general under Thomas Jefferson, former lieutenant and acting governor of Massachusetts (shown above). The Senate voted its approval. But Lincoln declined, citing bad eyes. Again, being a Supreme Court justice wasn’t that great.

Madison then nominated Alexander Wolcott of Connecticut, mentioned in yesterday’s posting. Wolcott had practiced law, but he was primarily known as the leader of his state’s Republicans. He engaged in harsh political disputes and oversaw patronage appointments. The closest he’d gotten to judicial experience was in his own patronage position as a Customs inspector. The Federalist Columbian Centinel called Wolcott’s nomination “abominable.”

Nonetheless, the Republicans were firmly in charge of the U.S. Senate, 28 votes to 6, and Supreme Court nominees usually got approved within a week. In Wolcott’s case, the Senators referred the court nomination to a committee for the first time. Then they didn’t take a vote until nine whole days later, on 14 Feb 1811.

The U.S. Senate rejected Alexander Wolcott’s nomination to the Supreme Court by a vote of 24 to 9. This was the largest percentage against any court nominee ever. Even Republican Senators voted against the nomination by a margin of at least 2:1.

Wolcott went back to Connecticut politics. President Madison looked around for another New Englander to nominate to the high Court. Again, he needed a prominent Republican—but one with a less partisan history.

Madison’s third choice was John Quincy Adams, former Federalist Senator from Massachusetts. Adams had bucked his party’s foreign policy on several issues under President Thomas Jefferson and ended up a politician without party backing. In 1809 Madison appointed him the U.S. minister to Russia, a country Adams had first visited as a teen-aged secretary for the Continental Congress’s envoy, Francis Dana.

As with Lincoln, the Senate gave their advice and consent in favor of President Madison’s nominee. And as with Lincoln, the nominee declined the job. Adams would go on to be U.S. Secretary of State, President, and a long-time Representative from Massachusetts.

Once again President Madison scanned the New England legal landscape. The best candidate he could find was a lawyer from Marblehead, only thirty-two years old, with one term in the U.S. House of Representatives under his belt. This was Joseph Story, still the youngest person ever nominated to the U.S. Supreme Court.

Story was confirmed and served thirty-three years. As an associate justice, law professor, and author, he exercised more influence over the U.S. legal system than anyone else in the early 1800s but Chief Justice John Marshall.

When Story died in 1845, President James K. Polk nominated Levi Woodbury of New Hampshire to succeed him. After Woodbury, the justices in that line were Benjamin Curtis of Watertown; Nathan Clifford of Maine; Horace Gray of Boston; and Oliver Wendell Holmes, Jr., of Boston. The replacement for Holmes was Benjamin Cardozo of New York, though by that time Louis Brandeis—a native of Kentucky who had established his legal career in Boston—was representing New England on the high bench.

“To serve the purpose of their party”

Over the past couple of days, I’ve been quoting letters to the newspapers of Litchfield, Connecticut, about papermaker Elisha Horton’s conversations with his employer, Julius Deming, around the election of 1804.

Horton stated in court and in the press that Deming told him to vote his conscience. Four other people said Horton had complained to them at the time that he was afraid to vote Republican out of fear Deming would fire him and/or shut down the paper mill.

What could make this situation more difficult? Religion! As I noted back here, Horton and his wife were founding members of Litchfield’s Methodist Episcopal Society.

A week after printing Horton’s letter about Election Day, the Federalist Litchfield Monitor evidently ran a piece arguing that the man’s “brethren, who are Methodists, believe him to be a pious, honest, sober citizen for they have proved him and known his ways…”

That 5 Feb 1806 issue of the Litchfield Monitor isn’t in the newspaper database I can access, if it survives at all. I’m quoting from the 5 March Witness, the town’s Republican newspaper.

That issue of the Witness published a letter from four men; one of them, John Stone, had already written to contradicting Horton’s account of 1804. Together those men certified “That said Horton for two years past, or more, has not been considered by the Methodist society in this town as a member of said society.”

The Litchfield Monitor responded on 12 March with two letters. The first said that Horton was being “assailed with all the malice of Democracy, because he was too honest to sell himself to the tools of Alexander Wolcott.” Those four Methodists had written about Horton’s church membership merely “to serve the purpose of their party.”

Alexander Wolcott (1758-1828) was the leader of Connecticut’s Republicans. That year he accused the Federalists of having “priests and deacons, judges and justices, sheriffs and surveyors, with a host of corporations and privileged orders, to aid their elections.” There was no love lost between the parties.

Then came a letter from Horton himself, declaring

Within two years last past, the Methodists…made application to me to become their Leader. . . . I told them that my business was such, that I could not conveniently attend their meetings on week day, and that my constitution would not admit of my being out so far from home in the night, &c.

I have repeatedly attended their Sabbath preaching, and have cast in my mite at their contributions, and had requested John Stone several years ago to call on me when there were any collections to be made.

Another of the certificate signers, Horton said, had carried his contribution to “a poor Methodist Preacher” in a distant town. He concluded:

I am grieved to the heart, to find that men can be so infatuated as to testify as they and others have done, with the notorious design, to wound my feelings, and to murder my reputation.—I do not write this to prejudice you against them, but to let you know how far I am innocent as to what they have testified.

Horton did not, however, attempt to directly deny what Stone and others had written about his dilemma in 1804.

It appears that everyone in Litchfield now knew the real situation. Horton felt dependent enough on Deming that not only had he stopped voting for Republicans, but he also refused to acknowledge feeling any pressure from Deming. This was, after all, before secret ballots.

Later in 1806, Deming sold the paper mill to the partnership of Federalist lawyer Aaron Smith, shopkeeper Timothy Peck, and Horton. After two years Peck and Horton bought Smith out. That evidently restored the papermaker’s political independence.

Life in Litchfield went on. The Federalists lost power nationally, then even in New England. Horton retired from the mill. The election of 1824 shook up the national parties, producing a new duality of Democrats and Whigs.

When Horton died in 1837, the Litchfield Enquirer praised him as a “revolutionary officer” and a veteran of the Boston Tea Party. It also said, “As in ’75, so in ’37, he was a zealous and staunch whig.”