Yes, There Were Chief Justices Before Marshall

CHICAGOLAWBULLETIN.COM WEDNESDAY, DECEMBER 17, 2014

Volume 160, No. 247 Yes, there were chief justices before Marshall

n the history of the U.S. On to 3 Supreme Court, there have C O T T E R ’S CORNER Upon the resignation of Rutledge, been 17 chief justices. Many Washington nominated William consider John Marshall to be Cushing, but Cushing rejected the the first, including one of my nomination in February 1796. (The studentsI who opened a paper by position obviously did not have the stating he was the first chief. prestige and honor or responsibil- Notwithstanding that Marshall DANIEL A. ities it eventually would post-Mar- served the longest in that role and COTTER shall.) Washington turned to Oliver that his court’s decisions estab- Ellsworth, nominating him on lished the court as the final arbiter March 3, 1796. The Senate unani- of the Constitution and established Daniel A. Cotter is vice president, general mously approved Ellsworth the its powers, three chiefs preceded counsel and secretary of Fidelity Life next day. M a r s h a l l . Association and an adjunct professor at Ellsworth was a delegate to the The John Marshall Law School, where he The first teaches SCOTUS Judicial Biographies. Constitutional Convention from The inaugural session of the He is also president of The Chicago Bar Connecticut and one of many Supreme Court began Feb. 2, 1790, Association. The article is Cotter’s lawyers at the convention. He was in the new nation’s capital, New opinion and not to be attributed to one of the drafters of the Constitu- York City. Presiding over the first Fidelity Life, the CBA or John Marshall. tion and one of the main proponents Supreme Court was Chief Justice of the bicameral legislative setup. John Jay, a Founding Father of our No. 2 He left the convention before c o u n t r y. John Rutledge was a delegate to signing and eventually became a big A New Yorker, Jay became a the Continental Congress and a del- advocate of judicial review as a member of the Committee of Cor- egate to the Constitutional Conven- drafter of the Judiciary Act of 1789. respondence in 1774. He drafted the tion from South Carolina. Rutledge Ellsworth served until Sept. 30, Constitution of New York and was was a slave-owner and argued that 1800, when he resigned due to poor one of the three delegates to the any prohibition on slavery in the health. His tenure was short, al- Treaty of Paris to end the Revolu- Constitution would prevent the though two of his court’s decisions tionary War. Southern states from supporting —Hylton v. U.S. and New York v. He did not sign the Declaration the Constitution. Connecticut —established the of Independence (his New York In 1789, he was nominated as the c o u r t ’s power of judicial review role prevented him from voting on Supreme Court’s first associate jus- (fleshed out by Marshall a few years it) and was not at the Constitu- tice and was confirmed. He resigned later) and witnessed the first exer- tional Convention but was one of in 1791 without having heard a single cise of the court’s original jurisdic- the authors of the Federalist Pa- case to become the chief justice of tion in state disputes. p e rs . the South Carolina Supreme Court. Ellsworth also established the President George Washington Rutledge became a recess ap- precedent of unified court opinions, originally offered Jay the position of pointment when Jay resigned, and which Marshall would adopt and secretary of state, which Jay reject- his term began immediately on e n f o r c e . ed. When offered the newly created June 30, 1795. Rutledge gave a Conclusion position of chief justice (pursuant to speech roundly criticizing the Jay John Marshall may be seen as the the Judiciary Act of 1789), he ac- Treaty. That speech cost him sup- father of the Supreme Court. He ce p t e d . port of the Washington administra- might also be considered first when Jay ’s court heard only three cases tion and many senators, and even- it comes to legacy and assessment in his five-year tenure, the only sig- tually, his nomination was rejected. of accomplishment. nificant one being Chisholm v. Geor- Rutledge resigned on Dec. 28, But he wasn’t the first chief jus- gia (the genesis of the 11th Amend- 1795, and the rejection of his nom- tice. Three esteemed contempo- ment). In 1795, Jay resigned as chief ination ruined the man. He at- raries set the tone, and Marshall ex- justice to become the governor of tempted suicide back in South Car- panded and strengthened what his New York. olina and withdrew from public life. predecessors had established.