William Cushing

Cushing was the longest-serving of Washington's original Supreme Court appointees. His career illustrates the transition from colonial Massachusetts law to revolutionary state constitutionalism and finally to federal constitutional law. He spent more than twenty years on the Supreme Court, although the Court's early docket was sufficiently small that his surviving opinions are much fewer than those of later justices.

Cushing was born in Scituate, Massachusetts, on March 1, 1732, into a prominent Massachusetts legal family. He attended Harvard College and graduated in 1751, then studied law and entered practice in 1755. He subsequently moved to the Maine district of Massachusetts, where he held several local judicial offices.

In 1772 Cushing joined the Massachusetts Superior Court of Judicature, succeeding his father. When revolutionary authorities reorganized the Massachusetts judiciary in 1775, Cushing was the only royal-era judge to retain his judicial position. He became Chief Justice in 1777 and served in that position until Washington appointed him to the Supreme Court. One of the most consequential episodes of his state judicial career came in 1783 in Commonwealth v. Jennison, where his charge to the jury treated the Massachusetts Constitution's declaration that all men are born free and equal as incompatible with slavery.

Washington nominated Cushing on September 24, 1789, and he joined the Supreme Court in 1790. Cushing participated in many of the Court's earliest cases, including Chisholm v. Georgia, Georgia v. Brailsford, Hayburn's Case, and Glass v. Sloop Betsey. In Chisholm, he joined the majority and wrote a separate opinion emphasizing the Constitution's language rather than relying heavily upon European legal history. His approach was comparatively direct and textual, particularly when compared with the more philosophical opinions of Wilson and Jay.

Cushing remained on the Supreme Court until his death, although illness increasingly limited his activity during his final years. After Rutledge's failed nomination, Washington nominated Cushing as Chief Justice in 1796, and the Senate confirmed him, but Cushing declined the position because of his health. He continued as an Associate Justice until September 13, 1810, when he died at his home in Scituate.

Cushing's legacy rests on both his long service and his role in the formation of early American constitutional law. His Chisholm opinion is particularly useful for understanding early textual constitutional interpretation because he deliberately focused on the Constitution itself rather than foreign legal systems. His earlier Massachusetts judicial treatment of slavery also makes him an important figure in the development of constitutional liberty before the federal abolition amendments.

Of the first five justices, Cushing is one of the clearest examples of a justice who sought the answer principally in the constitutional text. His Chisholm opinion explicitly rejected reliance on English and foreign law when determining the meaning of the Constitution.

Key decisions and opinions:

In Chisholm, Cushing was one of the four justices who separately concurred in the judgment against Georgia.