James Wilson: The First Justice

James Wilson was the first justice sworn in to serve on the United States Supreme Court. He took the oath of office on October 5, 1789, two weeks before John Jay, the first Chief Justice, was sworn in. Wilson died, disgraced, hiding from creditors in North Carolina, on August 21, 1798. Although he was never impeached, he was absent from the Court for the last year of his life. He was simply afraid to step foot in Philadelphia lest he be imprisoned by debtors, as had happened twice in the closing years of his life.

It was a sad ending to a legal career marked by extraordinary brilliance. Born in Scotland in 1742, Madison came to the United States in 1765, and read law for just under a year with John Dickinson. His law practice quickly thrived; throughout his career he was a bookish sort of lawyer, dedicated, to be sure, to his client's interests, but also alive to the Eighteenth century's promise of a universal science of law. He was the first lecturer on law at the University of Pennsylvania, and his lectures ranged from natural law to the forms of pleading.

Wilson harbored ambition to serve as Chief Justice, and wrote to President George Washington seeking the post. But the president may well have been mindful of Wilson's financial difficulties; Wilson was deeply in debt as a land speculator and budding capitalist. Wilson also acquired many enemies in Pennsylvania's fractious debates about the state constitution. The father of seven children, Wilson's romantic life caused a stir in Boston in 1793 when he began to court Hannah Gray; Wilson was 51-years-old at the time, but Boston wags thought him fifty-five; his true age hardly mattered, though, Ms. Gray was at most 19 years old and younger than several of Wilson's children. The couple married in 1793.

As near as I can tell, there is only one biography of Wilson in print, Charles Paige Smith's, James Wilson: Founding Father 1742-1798 (University of North Carolina Press, Chapel Hill, 1956). Smith's work was apparently commissioned by the Institute of Early American History and Culture at Chapel Hill. It has gone out of print, but I was able to find a copy on line at a used book shop.

Smith's work is strangely uneven. He recounts well and reliably Wilson's role in the Continental Congress and debates over the new Constitution. His treatment of Wilson as a justice is lackluster. That may not be a fault of the biographer, however; the Court's docket did not immediately take shape. The first few years of the institution were unremarkable. Most intriguing about Smith's work is an impressionistic couple of chapters about Wilson's views of the nature of law and government; Wilson did not emerge as a philosopher of the first-rank; his business affairs intruded upon the hours he could steal for speculative enterprises. Even so, Wilson's speculations are brilliant and inspiring. I am now scouting for a copy of Wilson's Works edited by James Dewitt Andrews in 1896; this edition contains Wilson's notes for his early law lecutres. Aspiring scholars could well supply the gap in the literature on Wilson by a sustained look at the sources of his political theory.

An overall assessment of Wilson? In the infant republic the law had not yet fractured into separate spheres dividing practitioners from judges and both from scholars. Wilson apprenticed with Dickinson, one of his generations leading lawyers, and they earned his keep in private practice. His brilliance drew him into the transforming struggles of his time, where his learning made him as influential a founder as James Madison. He died young, at 56, struggling beneath a crippling mountain of debt that seems to have broken his spirit. And he was throughout his life on difficult terms with his mother, who had hoped and prayed that he would assume a clerical career. He was no saint, and refreshingly so.

Wilson was a public intellectual at a time in which there were no riches to be gained from opining. He risked his life to help form a new nation and was a visionary in terms of the importance of an independent judiciary. Yet he was a man that even his biographer had difficulty understanding. "Tracing over the events of Wilson's life." Smith notes, "we are impressed by the lucid quality of his mind. With this went a restless energy and insatiable ambition, an almost frightening vitality that turned with undiminished energy and enthusiasm to new tasks and new ventures. Yet, when all has been sad, the inner man remains, despite our pleadings, an enigma."

Is the enigmatic character of Wilson a weakness? We know enough to know of his brilliance. In our time, justices rarely sparkle as intellects, and when they do so, the glare they reflect is too often so narrow and focused as to distort, rather than illuminate, their objects. I wish knew less about the personal lives of the justices we now seek, and that, as a class, they were better read, and more passionate about ideas. Wilson was a giant in a time of giants; perhaps a young republic fostered such learning. Perhaps we need a little ferment in our time to shatter the depressing mold that seems to make all our justices look so much alike.

John Marshall: Would He Make The Grade Today?

The nomination and now near-certain confirmation of Sonia Sotomayor as a justice of the United States Supreme Court stunned me. I am disconnected from the great personages and events of history. I'm a backwater kind of guy, representing folks who rarely make life's larger radar. But I have appeared many times before Sotomayor, and I like her. How did she cross the line from workaday stiff to assume a place in the larger world?

I've been reading through the thumb-nail biographies of the 100-plus people who have thus far served on the Court. These are gathered in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall. Each biography has a brief bibliography. As I read, I keep wondering what it will take to get an ordinary trial lawyer onto the high court this century. Can we force an ordinary schooner through the blockades set by the various legal interest groups and status factories?

Marhsall's 34-year tenure as the third chief justice of the United States Supreme Court is ably and well portrayed in Jean Edward Smith's, John Marhsall: Definer of a Nation (1996). The book is the size of a small telephone directory, but is nonetheless a wonderful and quick read. On balance, Smith's presentation of the legal doctrines the Marshall court crafted is jargon free and accurate. Smith appears not to have legal training; the fly leaf of his work lists his profession as "political scientist." I giggled when I read that, imagining the man conjuring ideal states in a lab somewhere. In fact, Smith is a decent historian.

Marhsall was a practitioner for a time, handling as many as 300 clients per year and struggling to make ends meet in a small practice. He routinely co-mingled client funds with his own, effectively giving himself interest-free loans when times were tight. (Smith notes it was not until 1971 that Virginia's bar was prohibited from co-mingling client funds with their own monies.) To a degree that is comforting, Marhsall struggled throughout his career to make ends meet.

When appointed to the bench in 1801 by John Adams, Marshall had already served the nation in the XYZ Affair, steadfastly refusing to pay Talleyrand any sort of bribe for advancing negotiations with France. As a justice, he forged legal doctrines that assured not just the independence of the judiciary, but also the ability of the judiciary to settle for all branches what the law is, and is not. His decisions also set the metes and bounds of federalism in an era in which the boundaries between state and federal power were unclear and hotly contested. Indeed, reading about Marshall with the benefit of hindsight is sobering. When Marshall wrote to friends about the fragile and even miraculous character of the struggling union between the states, I hear the rebel yell and smell the gunpowder of a Civil War. I suspect Marshall did, too.

Smith reviews Marshall's tenure on the Court term by term, discussing significant constitutional decisions and placing them in their political context. Yet toward the book's end, Smith loses focus. For hundreds of pages, the struggle between Federalists and Republicans is vividly and well portrayed. The parties then fracture: there are high federalists, moderate federalists, and irreconcilable Republicans. Then, seemingly out of the blue, a new struggle dawns, pitting Democrats against Whigs. Smith simply fails to give any account of this partisan realignment: Whigs and Democrats enter stage left without so much as a dramatic chorus to announce the new personae.

What fascinates about Marshall's era was how quickly and easily lawyers moved from the ordinary practice of law to the bench or into public office. There weren't giant law schools insulating legal academics from the street. Nor did large law firms cultivate a power elite removed from the pulse of ordinary life. Force of character and intellect governed prospects and were more rawly on display. A lawyer could stumble, fall and recover and still remain in the game. Smith recounts how during argument in one case, Marshall took a brief recess so that the lawyer, Luther Martin, a notorious drunkard, could recover his wits, and perhaps some sobriety, before continuing.

One charming curiosity: Smith reports the case of a prominent gentleman seeking legal counsel. The man hires a well-coiffed lawyer from Richmond. While waiting in court for his case to be called, the man watches Marshall, a young lawyer of uncertain sartorial standards, argue against the very lawyer the man had hired. The client was so impressed by Marshall, he asked Marshall to take his case. But he explained that he had already given the other lawyer $95 of the $100 he brought with him that day. Marshall agreed to take the case for $5. It is a great story. Unfortunately, the identical yarn is reported of Abraham Lincoln in Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007). Both stories can't be true; perhaps neither one is.

It was a rough and tumble world in Marshall's time. One has the sense that young men and women did not conceive career trajectories for themselves in high school or earlier and then set about connecting every conceivable dot such that they could present, well past mid-life, as people worthy of trust. Have we created a new class of courtiers, men and women who prance and preen not at an imperial court, but in the plush halls of large firms or within the Ivy-draped walls of just the right schools, learning manners, protocol and just how to kiss the right ring and the right time? Oh, for a whiff of genius every now and then.

Marshall's brilliance is evident in Smith's biography, and so is the struggle of the judiciary to establish for itself an identity and role within an emerging nation. Throughout it all, Marshall appears to have remained a good and simple man, notable for his plain appearance, simple tastes and devotion to his wife. Would Marshall make it onto the high court today? One can't say. There weren't a set of "right" schools to attend in his time, no large firms cultivate prospects and the government was too new to have fostered an elite cadre of professional bureaucrats. One needed only talent in those days; today one needs talent plus. Ours is the loss.

Who Were The Justices? James Wilson: 1789 to 1798

I was just taken to task in a private email over the piece I wrote on Harold Koh. Once again, the reader reminded me, I let my own sense of self-righteous hurt blossom into an unthinking attack on a good man. Koh deserves a reassessment, I am told. He is an activist and advocate with a heart.

I own the characterization of me. For whatever reasons, I lack the grace to leave a difficult past behind. Rather than make amends, I tear at things. The result is often not pretty. But was I wrong about Koh?

Do we need a trial lawyer on the high court? We can live without one, that is certain. But I would like to see someone who's bled, either in the trenches, or in real life, on the Court. Is asking for one such person out of nine too much? Koh comes from a privileged background, and has glided through a professional life that looks more like a fiction than the lives most folks lead.

What sorts of folks have become justices?, I wondered the other day. I've begun making notes on the brief biographies presented in The Oxford Companion to the Supreme Court of the United States. Starting at the beginning, I looked at the biography of the first person ever to serve on the Court, James Wilson.

Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.

He was born in Scotland in 1742 and began to read law with John Dickinson in 1765 in Philadelphia. In 1767, he opened a practice in western Pennsylvania. From an early age, he wrote extensively about government, and aspired to high political office. In 1775 he was elected to the Second Continental Congress; he was not at early supported of independence, but did sign the Declaration of Independence. He played an important role in the Convention that produced the federal constitution.

(Contemporary analogue: Top notch education as a lawyer and rapid rise through public service. The extent and nature of his practice is hard to discern in the brief biography.)

But here is the fascinating part. Wilson was appointed to the Court in 1789 as an associate justice. Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. "Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina." A justice in debtor's prison?

Wilson sat on the Court until his death in 1798, according to the Oxford Companion. Is it true that a sitting justice of the Supreme Court was actually imprisoned because of debt? And did he really go into hiding to avoid debt while a justice? Now here is a justice rubbed raw by experience, no matter how noble the early training.

Wilson's writing on government and law were staples of early American education. But it turns out he is far more than the some of these accomplishments. I'm looking for a copy Charles Paige Smith's biography of Wilson. James Wilson: Founding Father, 1742-1798 has long been out of print, but it tells a story I want to read.