“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.

“I fear’d young HAMILTON’S unshaken soul“

As David Humphreys and his fellow Hartford Wits composed the early installments of their Anarchiad, states were deciding whether to send delegations to a constitutional convention in Philadelphia.

The stated purpose of that convention was to revise the Articles of Confederation, but many people hoped—or worried—that the gathering might make very deep revisions indeed.

The Hartford Wits supported big change. Their fellow citizens of Connecticut were not so sure. The middle installments of the Anarchiad spent a lot of lines attacking James Wadsworth, state comptroller and a strong opponent of a new national constitution.

In March 1787 Humphreys wrote to his former boss George Washington that Connecticut might not send a delegation to Philadelphia at all. But most other states had committed by then, so the poets saw reason for optimism.

The 5 April installment of the Anarchiad depicted the villain Anarch lamenting his defeat, as in these lines:

Ardent and bold, the sinking land to save,
In council sapient as in action brave,
I fear’d young HAMILTON’S unshaken soul,
And saw his arm our wayward host control;
Yet, while the Senate with his accents rung,
Fire in his eye, and thunder on his tongue,
My band of mutes in dumb confusion throng,
Convinc’d of right, yet obstinate in wrong,
With stupid reverence lift the guided hand,
And yield an empire to thy wild command.

Allegorically this referred to New York’s choice to name a delegation, as Alexander Hamilton championed. The Hartford Wits thus lauded Hamilton’s political speeches in verse more than two centuries before Lin-Manuel Miranda.

On 12 May, Connecticut finally voted to send William Samuel Johnson, Oliver Ellsworth, and Erastus Wolcott to Philadelphia. Wolcott declined, citing fear of smallpox, so four days later the legislature chose Roger Sherman instead. Their mandate was “for the Sole and express Purpose of revising the Articles of Confederation.”

The Hartford Wits saw that as a win, and the Anarchiad lines published on 24 May expressed Hesper’s hopes for a better future. But there were still dire warnings about what might happen if people didn’t support significant change:

Yet, what the hope? The dreams of Congress fade,
The federal UNION sinks in endless shade;
Each feeble call, that warns the realms around,
Seems the faint echo of a dying sound;
Each requisition wastes in fleeting air,
And not one State regards the powerless prayer.

Ye wanton States, by heaven’s best blessings curst,
Long on the lap of softening luxury nurst,
What fickle frenzy raves! what visions strange
Inspire your bosoms with the lust of change,
And flames the wish to fly from fancy’s ill,
And yield your freedom to a monarch’s will?

The Anarchiad’s last installment appeared in September 1787 as the Constitutional Convention was wrapping up. Because of the body’s secrecy, no one yet knew the scope of the changes it would recommend. Sherman and Ellsworth had proposed the critical “Connecticut Compromise,” and Hamilton maneuvered to make the final vote appear unanimous.

In November, the Connecticut government called a state convention to discuss whether to ratify the new and very different U.S Constitution. During that debate Amos Doolittle issued a year-end-review cartoon titled “The Looking Glass for 1787.” In one section it showed three Hartford Wits on a hill labeled “Parnassus” reading their “American Antiquities”—the supposed fragments of The Anarchiad. At least in Connecticut, they had been a prominent voice of the debate.

False Anniversaries for Equiano and Wheatley

Earlier this month, on 16 October, Google’s doodle of the day featured the eighteenth-century author Olaudah Equiano, as shown above.

Which was great, except that the company said it was doing so to celebrate Equiano’s 272nd birthday. Many websites and Twitter feeds picked up that factoid and repeated it around the globe.

But we don’t know that Equiano’s birthday was on 16 October. We don’t know what year he was born. Indeed, there’s a historical debate about whether Equiano was born in western Africa, as he stated in his memoir, or in South Carolina, as two documents from earlier in his life say.

Equiano’s memoir never states the year or day of his birth, and the chronology of his early life is fuzzy. Look at his Wikipedia page, and [as of right now] it says he was born around 1745, kidnapped into slavery around the age of eleven, and sold to a particular master in 1754—so the numbers aren’t adding up.

Sure, we can celebrate Equiano on 16 October, or any other arbitrary day. But to declare that’s his birthday isn’t just a claim without evidence. It normalizes Equiano’s life by modern standards when the whole point of his anti-slavery writing was that he was wrenched away from his life, family, and home. He was renamed multiple times and shipped around the globe. He had legally become property, and we don’t make a big deal about property’s birthday.

Celebrating Equiano’s birthday as if we had records about his early life the way we have records about, say, Oliver Ellsworth (born 29 Apr 1745) glosses over a huge difference between those two people’s lives. Indeed, it glosses over a crime.

Likewise, two days later on 18 October, a number of Twitter accounts tweeted that that date was the anniversary of Phillis Wheatley becoming free. The year they gave for that event ranged from 1773 to 1778, which should cast doubt on the dating.

In fact, we don’t know when exactly the Wheatley family of Boston freed their young slave Phillis. Instead, we know that on 18 Oct 1773 she wrote a letter that described herself as having become free. So Phillis Wheatley was free by that date; she wasn’t freed on that date.

That’s closer than what some other tweets have claimed about the poet—that she was born in 1753 or even on 21 Jan 1754. The sad fact is that she was kidnapped as a small child, so young as to still be losing teeth, and therefore came with no knowledge of her age and birthday.

Again, we can celebrate Phillis Wheatley’s accomplishments and the fact that she won her freedom through sheer intellectual accomplishment. The 18th of October seems like an appropriate day to do that because of the evidence we have. But we don’t have clear documentation of when the Wheatley family restored her freedom, and that in itself is significant. Such an emancipation was entirely up to the owners, reflecting the slavery system. The family may have given Phillis Wheatley a document declaring her freedom, but most of her later papers vanished after she died, a reflection of her relative poverty. We shouldn’t fog over those facts about her life.

Gerry and Warren, Anti-Federalist Allies

The Massachusetts Historical Society recently bought a 1788 letter from James Warren to Elbridge Gerry (shown here) that hasn’t appeared in any published correspondence of the two politicians. It does appear online at the Wisconsin Historical Society’s monumental roundup of documents about the ratification of the Constitution.

By 1788, Warren and Gerry had worked together for nearly two decades, first as Whigs opposing the Crown in the Massachusetts legislature and Provincial Congress, then as part of the Revolutionary War effort—Warren as paymaster general for the army in 1775-76 and leader of the Massachusetts legislature, Gerry as a member of the Continental Congress.

In the mid-1780s Warren, unlike many of his wealthy Massachusetts merchant friends, didn’t fully condemn the Shays’ Rebellion. He and his wife, Mercy, preferred a weak national government and feared an overreaction to that rural uprising. There was indeed a Constitutional Convention in response. Gerry served as a Massachusetts delegate to it and came away opposed to the result.

Gerry reported to the Massachusetts legislature on 18 Oct 1787 about what he saw wrong with the proposed new government:

My principal objections to the plan are that there is no adequate provision for a representation of the people—that they have no security for the right of election—that some of the powers of the Legislature are ambiguous and others are indefinite and dangerous—that the Executive is blended with and will have an undue influence over the Legislature—that the judicial department will be oppressive—that treaties of the highest importance may be formed by the President with the advice of two thirds of a quorum of the Senate—and that the system is without the security of a bill of rights. These are objections which are not local but apply equally to all the States.

The Massachusetts ratification convention met in early 1787. It asked Gerry to testify, but when he did Richard Dana, a Federalist, complained that he was trying to enter into the debate even though he wasn’t a delegate. Gerry published an angry defense of himself. Despite his arguments, the Massachusetts convention ratified the new Constitution with a request for amendments.

By then the debate was becoming national. Gerry and fellow Anti-Federalist Luther Martin of Maryland engaged in a newspaper exchange with the Federalist delegate Oliver Ellsworth of Connecticut, who wrote as “A Landholder.” Ellsworth then claimed that Gerry had badmouthed Martin during the national convention, apparently trying to drive a wedge between them. Gerry published an open letter complaining about that.

By the summer of 1788, enough states had ratified the Constitution to give it legal force. Gerry was feeling rather ill used, and that’s when James Warren sent him this sympathetic letter about unfair attacks on him.

TOMORROW: Which rather veered off the topic.