A Treasure of American History: President George Washington Appoints the First Associate Justice of the US Supreme Court in September 1789

A remarkable document signed by the first two heads of the first US government: Chief Justice and President

This is the only such appointment signed by Washington we have ever seen, or ever expect to see

The Supreme Court of the United States is the only court specifically established by the Constitution. It was implemented by the Judiciary Act adopted on September 24, 1789. That same day President Washington nominated five distinguished men for the first Supreme Court and sent their names to the U.S. Senate for ratification. He made these nominations in the hope, as he said, that they would “give dignity and luster to our national life.” John Jay was named Chief Justice. He was co-author of The Federalist Papers along with James Madison and newly appointed Treasury Secretary Alexander Hamilton, and was a key Hamilton (and Washington) ally. The four Associate Justices (there had been five but Robert Harrison was too ill to serve and his nomination was withdrawn) were William Cushing, who was Chief Justice of the Massachusetts Supreme Court; John Rutledge, a South Carolinian who had played a key role at the Constitutional Convention in 1787; James Wilson of Pennsylvania, who had signed both the Declaration of Independence and U.S. Constitution; and John Blair, Jr., a member of Virginia’s first court of appeals. Thus Washington sought a geographical balance for the Court’s Associate Justices, selecting one man each from New England, the Mid-Atlantic states, the upper South, and lower South. On September 26 the Senate confirmed these five men, and afterwards Washington signed their official appointment documents. The U.S. Supreme Court convened for the first time on February 2, 1790.

William Cushing was a member of the Massachusetts Superior Court during colonial days, having been appointed in 1772. After the outbreak of the Revolution, the Massachusetts Provincial Congress sought to reorganize the courts to remove the trappings of British sovereignty. Consequently, it essentially dissolved the Superior Court and reformed it in November 1775. Of all its justices, Cushing was the only one retained. The Provincial Congress offered the seat of Chief Justice first to John Adams, but he never sat, and resigned the post in 1776. The Provincial Congress then appointed Cushing to be the court’s first sitting Chief Justice in 1777. He would sit as Massachusetts Chief Justice until 1789, when he joined the Jay Court.

In 1783, Cushing presided over a series of cases involving Quock Walker, a slave who filed a freedom bill based on the language of the new state constitution. Up until then no state had outlawed slavery effective immediately and enforced that abolition. In April of that year, in the last of the Walker cases, Commonwealth vs. Jennison, Cushing stated the following principles: “As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established…But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal – and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property – and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Slavery was ended in Massachusetts by that ruling, and the 1790 census showed the number of slaves remaining in Massachusetts as zero.

Cushing was vice-president of the state convention that ratified the Constitution of the United States in 1788, and presided at most of the sessions because of the illness of John Hancock who was president. When Cushing was called to the Supreme Court by President Washington, his commission was dated on September 27, 1789, next after that of Chief Justice Jay. Considering Cushing’s finding that slavery was irreconcilable with American liberty, Washington’s selection of Cushing for the High Court is somewhat remarkable and sheds a deeply fascinating light on Washington himself.

The work of the first Court was light at first. It was not until the August term of 1792 that a case arose in which opinions were delivered. In State of Georgia vs. Brailsford, Mr. Justice Cushing wrote a dissenting opinion. It arose on a preliminary question, and when later it came before the Court on its merits the view of Cushing prevailed. The most important case in which Cushing rendered an opinion was Chisholm v. Georgia. The point to be decided was whether by virtue of the Constitution of the United States one of the states was subject to suit at the instance of a citizen of another state based on a Federal claim. The Court was divided but an opinion expressive of the prevailing view that the Constitution created such right of suit was delivered by Mr. Justice Cushing.

Cushing was highly thought of, and had numerous signal honors during his service. He was the first member of the Supreme Court to administer the oath of office to a President of the United States. He performed that function at the second inauguration of Washington in March 1793. Then, in 1795, during the absence of Chief Justice Jay on his mission to negotiate the Jay Treaty with Great Britain, Cushing presided as Senior Associate Justice over the Court in Jay’s place. Washington nominated Cushing for the post of Chief Justice of the Supreme Court in 1796, and the nomination was unanimously confirmed by the Senate on January 27, 1796. However, Cushing declined the commission and chose to remain as Associate Justice.

Document signed, as President, on vellum, New York, September 27, 1789, stating that “…Reposing special trust and confidence in the wisdom, uprightness, and learning of William Cushing of Massachusetts, Esq., I have nominated, and with the advice and consent of the Senate, do hereby appoint him one of the Associate Justices of the Supreme Court of the United States, and do authorize and empower him to execute the duties of that office according to the Constitution and Laws of the said United States…”

The first meeting of the court:

On the verso is an autograph note signed by Jay the very day the Supreme Court met for its first session: “New York, 2nd Feby. 1790. On this day the within named William Cushing took before me the oaths prescribed by Law for the faithful execution of his office, and to support the Constitution. John Jay, Chief justice.” Cushing was on the High Bench for 21 years until his death in 1810, and was the longest serving of any Washington appointee to that Court.

Two great moments:

This document is signed by President Washington the day after the Senate approved Cushing’s nomination, and it is signed by Jay the day the Court met for the first time. Thus the heads of both the Judicial and Executive Branch of the First US government have signed this on crucial days in the history of our nation.

A note on rarity:

It is impossible to overstate the importance of the survival of this treasure to American judicial history. Only 114 people have been appointed to the U.S. Supreme Court through its entire span, too few for many appointment documents to have reached the market. In fact, in all our long years in this field, we have seen only three come up; Grover Cleveland’s appointment of Rufus Peckham in 1895, which we carried decades ago, John. F. Kennedy’s appointment of Arthur Goldberg, and Andrew Jackson’s appointment of John McLean. These all came up in the 1990s. There has also been an order to appoint, though not the appointment itself, issued by Abraham Lincoln on behalf of Samuel Miller, which we sold a few years back.

However none of these can begin to compare to an appointment made by George Washington to the very first Supreme Court of the United States. Only five men received such appointments. A careful search of public sale documents going back a century shows not one single appointment to the original Supreme Court, and our own careful observation over all the decades confirms that. This is the first we have ever seen, or ever expect to see.

It has been in a private collection for generations and has not been offered for sale since.