The Least Significant Justice
The Least Significant Justice
A Fourth of July competition between John Adams and Thomas Jefferson
Happy Independence Day!
On this Fourth of July, I am taking a diversion from my judicial-confirmation narratives to highlight two Supreme Court justices who admittedly have only a very tenuous connection with today’s celebration but who are very strong competitors for the prized title of The Least Significant Justice.
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It is an extraordinary fact of American history that, as schoolchildren once learned, John Adams and Thomas Jefferson both died on July 4, 1826—the 50th anniversary of the Second Continental Congress’s unanimous adoption of the Declaration of Independence. Jefferson was of course the primary draftsman of the Declaration, and Adams (along with Jefferson, Roger Sherman, Robert Livingston, and Benjamin Franklin) was part of the Committee of Five that the Congress appointed to draft it.
The strong connections that both Adams and Jefferson had to the Fourth of July led me to take a look at the Supreme Court justices they appointed. Each appointed three justices, and each also has a strong claim to having appointed the least significant justice ever.
Adams appointed John Marshall, the fourth chief justice of the United States and the consensus pick for the most significant justice of all time. He also appointed Bushrod Washington, a nephew of George Washington and a strong ally of Marshall’s during his three decades on the Court.
The third justice appointed by Adams is much more obscure, and for good reason. Alfred Moore served just four years on the Court. He resigned his seat in January 1804 because of poor health. During his time on the Court, he wrote a single solo opinion, 513 words in a case of maritime law. What’s more, although he was on the Court when Marbury v. Madison was argued and decided, he did not take part in the case. In his 1983 law-review article “The Most Insignificant Justice: Further Evidence,” Frank Easterbrook (then a law professor and since 1985 a Seventh Circuit judge) acclaims Moore for “show[ing] every promise of setting a standard of passive irrelevance for centuries to come,” but sadly concludes that Moore’s resignation “prevented him from fulfilling his pledge.” (Easterbrook wrote his law-review article in response to his colleague David Currie’s “preliminary inquiry” into which justice was the most insignificant.)
Easterbrook also laments that Moore’s single opinion has some “unfortunately well-turned sentences.” Indeed it does. Take this passage on whether France was our country’s “enemy” at the time a French privateer seized an American vessel:
[I]f words are the representatives of ideas, let me ask by what other word the idea of the relative situation of America and France could be communicated, than by that of hostility, or war? And how can the characters of the parties engaged in hostility or war be otherwise described than by the denomination of enemies? It is for the honor and dignity of both nations, therefore, that they should be called enemies, for it is by that description alone that either could justify or excuse the scene of bloodshed, depredation, and confiscation which has unhappily occurred.
The first justice whom Jefferson appointed was William Johnson Jr., who succeeded Alfred Moore and served for 30 years. The second was Henry Brockholst Livingston, a nephew of Committee of Five member Robert Livingston. Justice Livingston sat on the Court for 16 years until his death in 1823. Both Johnson and Livingston appear to have had ordinary careers in the shadow of Chief Justice Marshall, though one historian named Johnson “the most underrated of all justices.”
Jefferson’s third appointee, Thomas Todd, wins Easterbrook’s award for the most insignificant justice. Jefferson appointed Todd to a newly created seventh seat on the Court in 1807, and Todd remained on the Court until his death 19 years later. During his first six years on the Court, Easterbrook tells us, Todd wrote less than a page. And his entire corpus as a justice—14 opinions over 19 years—“may be summed up in two words: land tenure”:
Ten of his fourteen opinions involved land tenure disputes. He told us that a deed will not support a writ of entry unless the description of the lands is specific, that a patent issued by mistake will not support a writ of entry, and on and on and on. He apparently acquired this interest while serving on the Supreme Court of Kentucky. Having built up all this human capital, he saw no reason to abandon it, or acquire new knowledge, just because he had changed courts. He apparently took literally the charge that, as a Justice, he construe the Law of the Land.
As for Todd’s other four opinions: they “show only disdain for other subjects.” Easterbrook points out that while it was customary for the death of a justice to be noted in the United States Reports, the recognition of Todd’s service did not occur until fourteen years after his death.
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May this great nation of ours thrive long enough to provide many more contenders for the distinction of least significant justice.