“Lifetime Tenure” When the Supreme Court Began

The U.S. senate is holding hearings on the nomination of a new Supreme Court justice. Some senators have come out against giving this nominee a “lifetime appointment” despite having previously approved her lifetime appointment as a federal judge at two levels.

Social-media discussions of this issue got me thinking of what a “lifetime appointment” meant when the U.S. Supreme Court first met.

Lifetime judicial appointments were common in the British and thus British-American legal systems. Although overall life expectancy was lower in the eighteenth century, that’s largely due to childhood mortality, so once a mature man was appointed to the bench he often served for many years.

(Colonial Rhode Island was an exception to that system of lifetime appointments. Under its eighteenth-century constitution, judges were elected for one-year terms, though they could be reelected. Which just shows how anomalous Rhode Island was.)

I decided to look at the Supreme Court justices appointed in the 1790s to see how long they stayed alive and stayed on the court.

• John Jay / 6 years on the court / 40 more years of life after appointment 
• John Rutledge / 1 one year on the court, then another stint of a few months four years later / 11 more years of life 
• William Cushing / 20 / 20 
• James Wilson / 9 / 9 
• John Blair / 5 / 10 
• James Iredell / 9 / 9 
• Thomas Johnson / 2 / 28 
• William Paterson / 13 / 13 
• Samuel Chase / 15 / 15 
• Oliver Ellsworth / 4 / 11 
• Bushrod Washington / 31 / 31 

Thus, from early on we see Supreme Court justices serving for a decade or more. Six of these eleven men sat on the bench until they died, with an average tenure of over fifteen years. Three more justices nominated by the Presidents active in the Founding—John Marshall, William Johnson, and Joseph Story—also served more than thirty years.

That said, while the first generation of U.S. politicians could conceive of Supreme Court justices serving for decades, the number of jurists who actually do so has gone up. As of today the historical average tenure on the court stands at sixteen years, but no justice has left the bench before that time since the late 1960s.

The other career model we see these days, a justice serving for decades and then retiring, was less common in the 1790s. Indeed, the three early justices who resigned citing reasons of health—John Blair, Thomas Johnson, and Oliver Ellsworth—did so after only a handful of years. The job was more physically demanding when Supreme Court justices still rode the circuit to hear federal cases rather than staying in the capital.

One path we haven’t seen for a long time was a justice resigning from the top bench because he preferred a different government role. John Jay left the court to be governor of New York, having already run for that offce in 1792 and gone overseas as President George Washington’s treaty negotiator in 1794.

Finally, there’s a storyline we really don’t want to see repeated. John Rutledge (shown above) resigned from the U.S. bench to become chief justice in the home state of South Carolina. Then President George Washington put him back on the Supreme Court as chief justice, only for the senate to decline to confirm him. Rutledge attempted suicide, withdrew from public life, and died five years later.

The Stamp Act Congress’s Three Messages to London

On the same day that the Stamp Act Congress approved its Declaration of Rights and Grievances, which was mostly for public consumption, it also appointed three committees to draft formal messages to different branches of the British government:

• Robert R. Livingston of New York (shown here), William Samuel Johnson of Connecticut, and William Murdock of Maryland to compose “an address to his majesty,” George III.
• John Rutledge of South Carolina, Edward Tilghman of Maryland, and Philip Livingston of New York to write “a memorial and petition to the lords in parliament.”
• Thomas Lynch of South Carolina, James Otis of Massachusetts, and Thomas McKean of Delaware to pen “a petition to the house of commons of Great Britain.”

The next day was Sunday. On Monday, 21 October, all three committees presented their drafts. Probably for some reason of protocol, the “address” to the king became a “petition.” The congress read, debated, and amended the documents, approving the first two on the 22nd and the third on the 23rd.

All three documents made the same argument, with varying degrees of obsequiousness, detail, and appeals to economic benefits. Here, for example, is how each appeal began. To the king:

That the inhabitants of these colonies, unanimously devoted with the warmest sentiments of duty and affection to your sacred person and government, and inviolably attached to the present happy establishment of the protestant succession in your illustrious house, and deeply sensible of your royal attention to their prosperity and happiness, humbly beg leave to approach the throne, by representing to your majesty, that these colonies were originally planted by subjects of the British crown, who, animated with the spirit of liberty, encouraged by your majesty’s royal predecessors, and confiding in the public faith for the enjoyment of all the rights and liberties essential to freedom, emigrated from their native country to this continent, and, by their successful perseverance, in the midst of innumerable dangers and difficulties, together with a profusion of their blood and treasure, have happily added these vast and extensive dominions to the Empire of Great Britain.

To the Lords:

That his majesty’s liege subjects in his America colonies, though they acknowledge a due subordination to that august body the British parliament, are entitled, in the opinion of your memorialists, to all the inherent rights and liberties of the natives of Great Britain, and have ever since the settlement of the said colonies, exercised those rights and liberties, as far as their local circumstances would permit.

To the Commons:

That the several late acts of parliament, imposing divers duties and taxes on the colonies, and laying the trade and commerce under very burthensome restrictions; but above all, the act for granting and applying certain stamp duties in America, have filled them with the deepest concern and surprise, and they humbly conceive the execution of them will be attended with consequences very injurious to the commercial interests of Great Britain and her colonies, and must terminate in the eventual ruin of the latter.

Even as the delegates approved those documents, their united front was cracking. Although men from Connecticut and South Carolina had helped to draft the messages to Britain, those delegations insisted on not being listed among the colonies endorsing those documents. The instructions from their legislatures, they said, didn’t authorize them to approve such petitions to London. That meant only half of the colonies originally invited to the Congress were visibly getting behind its results.

And when the delegates discussed how to sign those documents, their unity would break down further.

COMING UP: A challenge to a duel?

The Birth of an Iroquois Constitutional Legend

Like any good fiction writer, Richard Barry didn’t just describe a dramatic meeting between John Rutledge and Sir William Johnson in 1765 and leave it there.

He also returned to the moment hundreds of pages later, when Rutledge was a delegate to the Constitutional Convention of 1787 and chairing its Committee of Detail (which Barry called by a different name):

At the first meeting of the Drafting Committee, on the morning of July 27, in Independence Hall, Rutledge, as chairman, drew from his pocket a parchment, which had never been referred to in the Convention or by any of the delegates outside, and read it aloud.

It was a replica of the constitution of the Treaty of the Five Nations (the Iroquois) of 1520. Rutledge read what the Indians had written more than two and a half centuries before: “We, the people, to form a union, to establish peace, equity and order. . . .”

The chairman made no speech. He merely read the dry, quaint, and archaic words of the Indian parchment. The inference lay in the act. [Charles] Pinckney, [James] Madison, [William] Paterson, and the others had gone back through England and Greece. The fruit of their research lay to hand in the documents on the table. They would be utilized. But for the first brief moment Rutledge was saying to his committee, in effect: We are American, of this soil and none other.

Barry’s citations offer no source for this anecdote, and we skeptical readers shouldn’t accept such claims without evidence. As I noted yesterday, Barry’s statement that Rutledge had discussed the Iroquois form of government with Sir William Johnson in October 1765 doesn’t hold up to scrutiny.

Furthermore, words on “a parchment” wasn’t how the Iroquois Great Law of Peace worked. The Five Nations hadn’t “written” anything in 1520 (or in whatever year they allied); they didn’t have a written language yet. Wampum belts served as memory aids for the agreement but didn’t preserve exact language. English interpretations of the Great Law of Peace don’t start with “We, the people,…” but with the first-person voice of Dekanawidah, the Great Peacemaker.

Finally, Rutledge’s Committee of Detail didn’t even draft the Preamble to the U.S. Constitution, the part that starts “We the People of the United States, in Order to form a more perfect Union…”—phrasing supposedly adapted from that mythical Iroquois parchment. The first draft of the Preamble came out of the Committee on Style and Arrangement weeks later.

The gaping holes in Barry’s story didn’t stop Charles L. Mee, Jr., from repeating it briefly in The Genius of the People (1987), a popular history of the Constitution. Donald A. Grindé and Bruce E. Johansen then used that “evidence” in their argument in Exemplar of Liberty: Native America and the Evolution of American Democracy (1991) that the example of the Iroquois Confederacy influenced the Founders of the U.S. of A.

The popularity of that thesis in some circles appears in turn to have inspired Joy Hakim to go back to Barry’s book for the tale of Rutledge and Johnson, which she retold in A History of US: From Colonies to Country. That school textbook, published by Oxford University Press, is well regarded. It does a good job of getting beyond traditional power structures to tell the story of the whole American nation. However, in this instance the author was misled by a biographer who had just made stuff up.

Did John Rutledge Meet Sir William Johnson in 1765?

As quoted yesterday, Richard Barry’s 1942 biography of John Rutledge described in dramatic detail how that South Carolina jurist met Sir William Johnson (shown at right, in red), the British Empire’s representative to the Six Nations.

According to Barry, Rutledge was in New York for the Stamp Act Congress in October 1765, and Johnson was making his yearly visit to the city with a retinue of Iroquois warriors.

Barry directly quoted Johnson’s joke about the congress, but he didn’t provide any specific citations for those words. Instead, his notes were general, pointing to the Thomas Addis Emmett Collection on the Stamp Act Congress in the New York Public Library, the Laurens Papers at the Long Island Historical Society [now at the Kendall Whaling Museum], and the Rutledge Family Papers at the Historical Society of Pennsylvania.

But we don’t have to go through all those archives to check Barry’s story. We can look at Sir William Johnson’s papers in the New York state library. In 1909 the state published a Calendar, or chronological list, of that correspondence. Two years later, that institution suffered a disastrous fire. In the 1920s, New York published transcripts of the surviving Johnson documents.

Both the Calendar of the Sir William Johnson Manuscripts and the published correspondence show that in October 1765 Johnson was writing letters from Albany and from his home at Johnson Hall, another hundred miles farther from New York City. He was nowhere near the Stamp Act Congress. (One of Sir William’s sons was in New York on 12 October, heading to Britain, according to a letter by John Watts.)

Furthermore, there’s no mention of a large body of Native American men camping north of New York in the city newspapers for that month. Merchant Thomas Ellison wrote a series of letters about events in the city that year, and the Iroquois didn’t come up.

Barry’s book turns out to be full of other refutable claims, stories without evidence, and outlandish interpretations. When he wrote John and Edward Rutledge of South Carolina (University of Georgia Press, 1997), James Haw wrote: “The only previous biography of John Rutledge, Richard Barry’s Mr. Rutledge of South Carolina, is unreliable. I have followed the advice of Professor George C. Rogers, Jr., to ignore Barry’s book.”

TOMORROW: And yet the Rutledge-Johnson meeting is in a respected textbook today.

A Legendary Meeting at the Stamp Act Congress

Here’s a lively picture of events during the Stamp Act Congress, which took place in New York two and a half centuries ago this month.

It comes from the pages of Richard Barry’s Mr. Rutledge of South Carolina, a biography of delegate John Rutledge (shown here) published in 1942.

The day after Rutledge put up at the Kings Arms Inn, New York was startled by the arrival of two hundred Indians, heavily armed, but without war paint and in holiday attire. They came down the Albany Post Road as the retinue of Sir William Johnson, High Commissioner of His Majesty to the Six Nations, who was arriving from his castle a hundred miles beyond Albany for his annual visit.

John Rutledge hired a coach and rode out to the Mohawk camp to call on Sir William. As Rutledge entered the tent of the High Commissioner, nude red braves, Seneca warriors, lifted the flap. The visitor had never seen such native males, sleek, alert, silent.

“I see you’ve come to comb the King’s hair!” Sir William shouted as he greeted the young southerner. “Good! Only don’t take his wig off!” He laughed uproariously.

After they had talked a while, Rutledge wanted to know about the operation of the Hodenosenee, the parliament of the Six Nations. Sir William explained: each nation was sovereign internally, but externally, especially in war, the council of sachems was supreme; this gave individuality to six nations, yet they had the united strength of one; the autocratic power granted the chiefs in war was for limited periods and was not hereditary.

“If England is ever to become a great nation,” the High Commissioner summed up, “she must go to school to the Iroquois. The Six Nations control this continent, not by accident, but through the triumph of their science of government. If it had a chance their system could master Europe—or the world.“

Rutledge eventually chaired the congress’s committee to write a petition to the House of Lords, one of three documents it created. His biographer therefore claimed that “JR caused George III to repeal the Stamp Act.” As you might guess, Barry did not have a high threshold of evidence for what he wrote about Rutledge.

In fact, that story about Rutledge, Johnson, and the Iroquois visitors in New York is complete bunkum.

TOMORROW: Negotiating the burden of proof.

The Birth of the Recess Appointment

Article Two of the U.S. Constitution includes this clause, proposed by Richard Dobbs Spaight of North Carolina:

The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This language was modeled after a clause in the North Carolina constitution. It wasn’t part of the first draft of the new federal document, but the men of the Constitutional Convention—many of whom probably expected to be Senators—knew they wouldn’t want to spend all their time at the capital just in case an important position should become vacant.

No one dissented on this clause, and therefore there was no formal debate about its meaning. The Constitution doesn’t define the parameters of the Senate’s “recess” or “session” except to say that it can’t “adjourn for more than three days” without the House of Representatives’ consent or meet somewhere away from the House. The founders at the Constitutional Convention shared a basic understanding of how legislatures worked, so they didn’t think it worthwhile to spell that all out.

The 67th installment of The Federalist Papers, written by Alexander Hamilton, explained that clause this way:

The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Hamilton’s main goal in that essay, context makes clear, was to assure readers that the President could not appoint Senators, as some critics of the Constitution had evidently claimed. The actual workings of the recess appointment were only a minor consideration for him.

The first President to make a recess appointment was the first President, George Washington. He named officials in the very first break of the first Congress. Presidents John Adams, Thomas Jefferson, and James Madison (also kind of an expert on the Constitution) also used this power. Jefferson, in fact, delayed his nomination of Albert Gallatin as Secretary of the Treasury so he could make a recess appointment; he didn’t submit Gallatin’s name to the Senate until almost eight months later in January 1802, when there was a Republican majority.

In fact, most of those early recess appointments were later confirmed by the Senate, or at least not rejected. But there was a notable exception. In June 1795 Washington named John Rutledge of South Carolina to be Chief Justice while the Senate was in recess. Less than three weeks later, Rutledge made a speech against the Jay Treaty negotiated by his predecessor, saying that he hoped Washington would die rather than sign it. This reduced his popularity within the administration.

Nevertheless, Rutledge presided over some court sessions that fall, and the President formalized his nomination in December 1795. By then, however, people were speaking openly about the new Chief Justice’s alcoholism, depressions, and failing mind. The Senate rejected the nomination, keeping its debate off the record. Rutledge went home to Charleston and attempted suicide. That didn’t work out, either.

Two days later, Rutledge wrote to Washington, resigning his commission as Chief Justice. Under the literal language of the Constitution, that commission was due to expire at the end of the Senate’s current session, or about five months later. Because Rutledge resigned, however, the country didn’t test the question of whether his commission should have ended as soon as the Senate had considered and rejected his appointment.

TOMORROW: Justice Joseph Story’s interpretation.

Three Lectures on Slavery in Newton in March

I grew up in Newton, where, as a schoolmate once observed, you can go on so many field trips to the Jackson Homestead (shown here in a photo by Michael Femia, via Flickr) that you end up thinking that it rivals Independence Hall and the White House as the most historically significant building in the U.S. of A.

Historic Newton is headquartered at that colonial home on Washington Street, which is a documented spot on the Underground Railroad. We grew up hearing about the site’s history of anti-slavery activism, but the history of slavery in Newton and elsewhere in Massachusetts got less discussion. Not no discussion, but there weren’t so many stories to latch onto. Historic Newton is co-sponsoring a series of lectures about slavery in other local buildings in March. Its announcement says, “This lecture series will consider slavery as a societal force that has echoed throughout every century of American history.”

Monday, 1 March, 7:00 P.M.
C. S. Manegold, the author of Ten Hills Farm: The Forgotten History of Slavery in the North, will speak about the five generations of colonial New England slaveholders who owned Ten Hills Farm (the Winthrops, Ushers, and Royalls). At Myrtle Baptist Church, 21 Curve Street, West Newton.

Thursday, 11 March, 7:00 P.M.
Screening of documentary film Traces of the Trade: A Story from the Deep North, in which producer Katrina Browne confronts her family legacy of slave-trading. After the screening James DeWolf Perry, a member of the family and Newton resident, will lead a discussion of the history it discusses. At Boston College Law School, Stuart House, Room 315, Center Street.

Monday, 22 March, 7:00 P.M.
“...some cotton, and tobacco, and negros...Pray have you heard nothing of my black guard Peter...” State Representative and historian Byron Rushing will reflect on the first two centuries of Africans in New England by comparing the origin story of Africans in the Massachusetts Bay colony recorded in Winthrop’s journal with the visit of South Carolinian John Rutledge’s enslaved servant to Boston in 1803. Held at Myrtle Baptist Church, 21 Curve Street, West Newton.