The Mortal Court

“Finding that Mr Jay is elected Governor of New-York, & presuming that he will accept the Office, I take the Liberty of intimating to you, privately, that, if he shall, I have no Objection to take the place which he holds… I never sollicited a Place, nor do I mean this Letter as an Application — it is intended, merely, to apprize you, of what I would do, if elected.”

Written six weeks before Washington nominated him, this letter is one of the more remarkable documents in Rutledge's sparse papers — a masterpiece of 18th-century political face-saving. The triple denial (“I never sollicited a Place, nor do I mean this Letter as an Application”) in a letter that is entirely an application reveals both his pride and his genuine grievance: he believed his credentials exceeded Jay's, and accepting the associate position had been a lasting wound. Washington appointed him anyway. The Senate then rejected him four months later — largely over his fierce opposition to Jay's Treaty. The man who lobbied to outrank Jay's legacy was ultimately destroyed by it.

Before he ever sat on the federal bench, Cushing delivered what may be his most consequential act. In a criminal assault case arising from an owner's attempt to recapture a man he claimed as a slave, Cushing charged the Worcester jury in words that abolished slavery in Massachusetts. There was no statute. No legislature. He found abolition in the grammar of the constitution itself. Slavery ended in Massachusetts by judicial interpretation alone — in 1783, eighty years before the Thirteenth Amendment. The full charge has survived:

"As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude... it has been a usage — a usage which took its origin from some European nations... But whatever sentiments have formerly prevailed in this particular, a different idea has taken place with the people of America, more favorable to the natural right 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... sets out with declaring all men are born free and equal... 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 criminal conduct or given up by personal consent or contract."

— Cushing's jury charge, Worcester, April 1783

Rugg notes that the same "all men are born free and equal" language appears in Virginia's first constitution. No Virginia court ever raised the question. More on Jennison →

Cushing had been confirmed unanimously. That same evening, Washington turned to him at a dinner party and said, with great impressiveness: "The Chief Justice of the United States will please take his seat on my right." It was the first Cushing had heard of his own nomination. He kept the commission about a week, then mailed it back — over Washington's urgent remonstrance:

"After the most respectful & grateful acknowledgment of my obligations to you for the appointment you have been pleased to make of me to the office of chief Justice of the united States... And after Considering the additional Care & duties attending on that important Office, which, I apprehend my infirm & declining state of health unequal to the weight of, I must beg leave to retain the place I have hitherto held... and pray that the return of the Commission for the office of chief Justice inclosed, may be accepted — and another person be appointed thereto."

— W.C., Philadelphia, 2 February 1796

Sixty-eight words to decline the highest judicial office in the country. No favors requested, no consolation prize sought. Compare this to John Rutledge's 300-word letter to Washington lobbying for the same post while insisting he was not lobbying. The contrast in character is complete. Full letter at Founders Archive →

Rugg put it plainly in 1920: Cushing was "a judge of the first rank under three different sovereigns — the province, the commonwealth, the nation." He served for fifty continuous years on courts of last resort. He kept the Massachusetts courts open during Shays' Rebellion when armed mobs surrounded the courthouse — bayonets rapping on his chest, face blanched to paleness, step firm — and then presided over the rebels' treason trials. He was the pivotal figure at the Massachusetts ratification convention, where John Hancock was too ill to chair the sessions. He abolished slavery in Massachusetts by reading the constitution's plain language, a decade before anyone thought to ask Congress to act. He was confirmed as Chief Justice of the United States and returned the commission by mail. He declined the governorship when both parties nominated him, preferring the bench. That no biographer has yet taken him seriously is, as Rugg already knew a century ago, one of the most conspicuous gaps in the entire American legal literature.

Wilson's arc is one of the most dramatic in the founding generation. Born in Fife, Scotland in 1742, he absorbed the Scottish Enlightenment — Hutcheson, Hume, Adam Smith — before emigrating to Philadelphia in 1765. He rose fast: Continental Congress delegate, signatory of the Declaration, dominant voice at the Constitutional Convention, original Supreme Court justice. At the Convention he argued more than almost anyone, pushing the principle that sovereignty derived from the people directly — not the states. The Electoral College framework is substantially his design. He wanted desperately to be the first Chief Justice. Washington chose Jay instead.

Then the fall. Wilson speculated heavily in western land, borrowing vast sums. The Panic of 1796–1797 destroyed him. He was sent to debtors' prison — twice — while still a sitting Supreme Court justice, an almost incomprehensible image. He fled to North Carolina to escape his Pennsylvania creditors, suffered a stroke, and died in a boarding house in Edenton in August 1798. He was fifty-five. He became the first sitting justice to die, and was buried far from Philadelphia in an unmarked grave for nearly a century.

As one blurbist put it: his career lacked the drama of Franklin or Hamilton, and the longevity of Madison. What it had instead was a Greek tragedy of its own design — towering achievement, towering anxiety, and a fall that erased him from the national memory almost immediately.

Taylor's 2023 book is a welcome addition but explicitly thematic — it is not the comprehensive modern biography Wilson deserves. The last full-length life is nearly seventy years old. In the interim, scholarship on the founding has exploded: new archival work, new frameworks for understanding the Scottish Enlightenment's influence on American constitutionalism, new attention to the Convention debates. Wilson was present for all of it, more centrally than almost anyone. He signed both documents. He designed the Electoral College. He built the intellectual architecture of popular sovereignty. He was the first law professor at Penn. And he died in a boarding house fleeing debt collectors. That story — in full, with modern scholarship — has not yet been written.

Blair was born in Williamsburg in 1732 into one of Virginia's most prominent families. His father, John Blair Sr., served on the Governor's Council for decades and was four times acting Governor. The family connection to William & Mary ran deep: his great-uncle, the Reverend James Blair, was the college's founder and first president — and at his death bequeathed much of his estate to John Sr. The justice studied at William & Mary, read law at the Middle Temple in London, married his cousin Jean Balfour Blair in Edinburgh in 1756, and returned to Virginia to a career of steady, distinguished public service. He was not the type to seek the spotlight.

What sets Blair apart is how early his judicial instincts led him toward constitutional principle. In 1782, serving on the Virginia Court of Appeals in Commonwealth v. Caton, he joined the majority in establishing that courts could annul legislative acts inconsistent with the constitution — a direct precursor to Marbury v. Madison two decades later. At the Constitutional Convention in 1787 he was one of only three Virginia delegates to sign the finished document. At the Virginia Ratification Convention of 1788 he worked quietly for approval.

On the Supreme Court, Blair's most important moment came in Chisholm v. Georgia (1793) — the first great case the Court decided. The question was whether a citizen of one state could sue another state in federal court. Georgia refused even to appear, claiming sovereign immunity. Blair, along with three colleagues, ruled against Georgia, basing his opinion squarely on the text of the Constitution and dismissing the political and historical arguments others deployed. The decision was so unpopular that Congress immediately proposed the Eleventh Amendment to overturn it. Blair's opinion was the plainest and most textually grounded of the majority — anticipating, in miniature, the originalist approach that would dominate jurisprudence two centuries later.

His wife died in 1792. His health deteriorated. He resigned in October 1795, returned to Williamsburg, and died there on August 31, 1800. He is buried at Bruton Parish Churchyard — a few blocks from the college his great-uncle founded, and the house that still bears the family name in Colonial Williamsburg's Historic Area.

Blair was one of the best-trained jurists of the founding era — Middle Temple educated, with decades of experience on Virginia's highest courts before he ever reached the Supreme Court. He participated in the pre-Marbury assertion of judicial review in 1782. He signed the Constitution. He wrote one of the most textualist opinions in Chisholm v. Georgia. And yet he has no biography. The Drinard essay is a century old. The Hall chapter is thirteen pages. The Laviano entry is a reference summary. What exists is the scaffolding of a biography, not the biography itself. Blair's Williamsburg roots, his family dynasty, his quiet but consequential judicial career, and his death in the same town where he was born — it is a contained, coherent, deeply American life waiting for a writer to take it seriously.

Iredell was born in Lewes, England in 1751, the eldest of five children. When his father's business collapsed and his father's health failed, the family dispatched seventeen-year-old James to America — to Edenton, North Carolina, where relatives had arranged a post as comptroller of customs for King George III. He arrived in 1768 knowing no one and nothing of the continent he'd just landed on. He would never leave it.

While collecting customs duties, he read law under Samuel Johnston — who would become his brother-in-law, mentor, and closest friend. He was admitted to the bar in 1771 and entered private practice. As the colonies moved toward revolution, Iredell found himself in a peculiar position: a King's servant with a King's paycheck who believed the King was wrong. He resigned his customs post in 1776 and emerged as one of the most lucid essayist-voices for independence in the region. His essay To the Public (1786) — articulating the doctrine that courts could void acts of the legislature inconsistent with a higher law — is considered by scholars one of the clearest pre-constitutional defenses of judicial review ever written.

He did not attend the Constitutional Convention in 1787. But when North Carolina proved stubbornly resistant to ratification — holding out longer than almost any other state — Iredell served as floor leader of the Federalists at both ratification conventions, arguing and debating until the state finally joined the union in November 1789. Washington noticed. Three months later, Iredell was on the Supreme Court.

His two defining opinions are Chisholm v. Georgia (1793) and Calder v. Bull (1798) — and together they define a coherent jurisprudential identity. In Chisholm, the Court ruled 4-1 that a citizen of South Carolina could sue Georgia in federal court. Iredell dissented alone. His argument: the Constitution's text did not explicitly abrogate state sovereign immunity, and courts should not infer enormous structural changes from ambiguous language. The majority disagreed. Congress passed the Eleventh Amendment to overturn the decision. Iredell was vindicated — and the modern Supreme Court has repeatedly cited his Chisholm dissent as correctly stating the original understanding.

In Calder v. Bull, Iredell wrote separately to argue that courts have no authority to strike down laws based on abstract "natural justice" — only on clear constitutional text. "The principles of natural justice are regulated by no fixed standard," he wrote; "the ablest and the purest men have differed upon the subject." It is a strikingly modern argument for judicial restraint and textual discipline — and it anticipates, with remarkable precision, the strict constructionism that would define conservative jurisprudence two centuries later.

The job killed him. Supreme Court justices were required to ride circuit — traveling vast distances on primitive roads, twice a year, to hear cases across their assigned regions. Iredell drew the Southern Circuit repeatedly: the longest, hardest, most grueling of the three. He covered thousands of miles a year by horse and carriage through the Carolinas, Georgia, and Virginia. By the late 1790s his health was broken. He died in Edenton on October 20, 1799, at the age of 48 — in the same town where he had arrived as a teenager with nothing but a customs appointment and the willingness to read law at night.

Iredell and Neil Gorsuch share a jurisprudential DNA that is rare enough to be worth naming. Both are strict constructionists who believe that extraordinary consequences require explicit textual authorization — and who are willing to be the only person in the room holding that position. Iredell was the lone dissenter in Chisholm; history vindicated him via constitutional amendment. Gorsuch ruled against his own appointing president's signature tariff policy in Learning Resources v. Trump (2026) and wrote separately in McGirt v. Oklahoma (2020) to rule against a Republican state government — both times because the text required it.

Whichard's 2000 biography is good — but it is now a quarter-century old, and Iredell's jurisprudential significance has only grown since it was written. His Chisholm dissent has been cited repeatedly by the modern Court. His Calder v. Bull concurrence anticipates textualism's central argument with striking precision. His To the Public essay on judicial review predates Marbury by nearly two decades. He arrived in America with nothing and helped build the constitutional order from the ground up — and then it wore him out and killed him at 48. That is a life worth a modern, full scholarly treatment. Whichard is the foundation. The next book is still unwritten.

Thomas Johnson was born in 1732 near the Chesapeake Bay in Calvert County, Maryland, one of twelve children in a planter family. He moved to Annapolis as a young man, read law, was admitted to the bar in 1760, and entered the Maryland Provincial Assembly in 1762. He was, from early on, a man of conspicuous ability and conspicuous reluctance — someone whom the Revolution kept drafting into service against his own instinct toward private life and his ironworks in Frederick County.

On June 15, 1775, at the Second Continental Congress in Philadelphia, Johnson rose and nominated his friend George Washington to command the Continental Army. It was one of the pivotal acts of the Revolution — and history almost immediately mislaid the credit. For 150 years the nomination was variously attributed to other men, until Delaplaine documented it definitively. Johnson did not serve in the Continental Army himself; he organized and led Maryland's militia as a brigadier general, raised troops, coordinated supplies, and in 1777 became the first Governor of Maryland, serving three terms. He and Washington had been friends and business partners for years — both investors in the Potomac Company, both Chesapeake men with a practical interest in the river's navigation.

Washington wanted Johnson on the original Supreme Court in 1789 and offered him the District Court for Maryland, which Johnson declined. He offered the Court again in 1791; Johnson demurred, citing the crushing burden of circuit riding. Washington personally reassured him, suggesting relief from circuit duties was forthcoming. Johnson accepted. He was the Court's first recess appointment, took his seat on August 6, 1792, and was assigned — as the junior justice — to the Southern Circuit, the longest and most punishing of the three. When he asked Chief Justice Jay for rotation of circuit assignments, Jay and the senior justices declined. Johnson, worn down and without recourse, resigned on January 16, 1793, after fourteen months. He had written no opinions as circuit justice and one procedural dissent as Supreme Court justice. He left no trace of his legal philosophy for future generations.

Washington offered him Secretary of State in 1795. Johnson declined. He served briefly as one of three commissioners for the District of Columbia — overseeing the early construction of the capital city, present at the laying of the Capitol cornerstone in September 1793 — before resigning that post too in 1794, reportedly after a dispute over land pricing along Rock Creek. He was, according to one account, always the entrepreneur, buying lots along Rock Creek and then haggling over prices after his own resignation.

He outlived nearly everyone. Washington died in 1799. Jefferson died in 1826. Johnson died on October 26, 1819, in Frederick, Maryland, at the age of 87 — having watched the country he helped found grow for four decades after he last held office. His grave is in Frederick. The county of Iredell in North Carolina was named after his Court colleague. Johnson County — there are many — scatters his name across the map without most people knowing why.

Johnson's resignation was not weakness — it was a diagnosis. The Judiciary Act of 1789 required Supreme Court justices to ride circuit twice a year across vast distances on primitive roads, sitting as circuit court judges in addition to their Supreme Court duties. The Southern Circuit — Johnson's assignment — covered the Carolinas, Georgia, and Virginia. Iredell, who drew the same circuit repeatedly, died of it at 48. Johnson, already in his sixties and warned Washington about this, resigned rather than destroy his health.

Delaplaine's 1927 biography is now nearly a century old — and it was written primarily to restore a specific factual credit, not to place Johnson in the full sweep of founding-era constitutional history. The deeper story is still waiting: a man who declined nearly every great office the Republic offered him, who put Washington in command and then stepped back, who saw the early Court's structural dysfunction clearly and said so, and who outlived almost every peer to spend his last decades watching what he'd built from a distance. The archives at Frederick, the Library of Congress, and Duke contain the raw material. Johnson County in many states carries his name. The full modern biography does not yet exist.

William Paterson was born in County Antrim, Ireland, on Christmas Eve 1745, the son of an Ulster Protestant tradesman. His family emigrated when he was two, landing at New Castle, Delaware, and eventually settling in Princeton, New Jersey, where his father kept a general store. He grew up conscious of his family's modest standing in a college town, attended the College of New Jersey (now Princeton) on the strength of his abilities, graduated in 1763, read law under Richard Stockton, and was admitted to the bar in 1768. He helped found the Cliosophic Society with Aaron Burr. He would spend the next four decades becoming, in every sense, the dominant legal figure of New Jersey.

At the Constitutional Convention in 1787 he had his finest hour. The large states — Virginia, Pennsylvania, Massachusetts — arrived with Madison's Virginia Plan: representation in both houses of Congress proportional to population. Paterson, representing New Jersey, a small state with no western land claims and no major ports, recognized what this would mean: the large states would dominate the national government indefinitely. He countered with the New Jersey Plan — equal representation for each state regardless of size. He refused to yield before Madison, Wilson, and Gouverneur Morris. The deadlock produced the Great Compromise: a House based on population and a Senate based on equal representation, two votes per state. Every small state's equal voice in the Senate traces directly to Paterson's refusal to back down in Philadelphia.

He signed the Constitution, returned to New Jersey, helped secure ratification, was elected one of the state's first two U.S. Senators, and helped draft the Judiciary Act of 1789 — the statute that created the federal court system. He resigned his Senate seat to become Governor of New Jersey. In 1793, Washington nominated him to the Supreme Court, then immediately withdrew the nomination: a senator cannot be appointed to an office created during his Senate term, and Paterson had been a senator when the Court was established. Washington waited one day for Paterson's Senate term to expire, then renominated him. He was confirmed the same day.

On circuit he proved one of the most active and consequential of the founding-era justices. He presided over the treason trials following the Whiskey Rebellion in 1794 — western Pennsylvania farmers who had taken up arms against the federal excise tax. He presided over prosecutions under the Sedition Act of 1798, sending Democratic-Republican editors and writers to prison for criticizing President Adams — rulings that would haunt the Act's legacy and his own. He also presided over several circuit cases that pushed the boundaries of federal jurisdiction and helped establish the nascent principle that federal courts could void state laws conflicting with the Constitution.

While on circuit in 1806, traveling to seek medical treatment, he stopped at the Albany home of his daughter Cornelia — who had married the patroon Stephen Van Rensselaer, one of the wealthiest men in America. He died there on September 9, 1806. He was buried in the Van Rensselaer family vault; when the manor house was demolished around 1900, he was reinterred in the Albany Rural Cemetery. The city of Paterson, New Jersey, bears his name. So does William Paterson University. The irony is that the man who insisted every small state deserved equal standing is commemorated by a post-industrial city that his 18th-century self could not have imagined, in a state he never stopped fighting for.

Paterson is one of the best-documented founding-era justices in terms of raw archival material. His papers are scattered across at least six major repositories — and one collection at Rutgers contains something remarkable: a manuscript of political essays Paterson wrote under pseudonyms for New Jersey newspapers between 1793 and 1797, published as "Aurelius," "Horatius," and "Hortensius" as he moved from the governorship to the Supreme Court. These pieces, dealing with state and national public affairs, have been largely unexploited by scholars.

O'Connor's 1979 biography is solid — but it predates the modern scholarly renaissance in founding-era legal history, and it was written before researchers had fully exploited the Rutgers and Princeton archive holdings. Paterson's constitutional contribution — the New Jersey Plan, the Great Compromise, the Judiciary Act — is as consequential as almost any founder's. His circuit court record is substantive: the Whiskey Rebellion treason trials, the Sedition Act prosecutions, the early federal jurisdiction cases. And the pseudonymous newspaper essays at Rutgers, written as he moved from the governorship to the Supreme Court, remain largely unread by scholars. The archives are rich. The biography is aging. A city carries his name. The modern treatment has not yet been written.

The Court ruled 6-3 in February 2026 that IEEPA does not authorize the President to impose tariffs — a landmark separation of powers decision striking down one of the defining policies of the Trump administration. Roberts wrote the majority. But the opinion that defines the case, and defines Gorsuch, is his concurrence.

Nobody asked for a 25-page history of delegated authority stretching from English corporate charters to 19th-century railroad commissions. Gorsuch wrote it anyway — citing Kirk v. Nowill (1786), the Company of Cutlers, the town of Cahaba Alabama, Story's Commentaries on Agency — to establish that the major questions doctrine is not a judicial invention but a restoration of principles common law had always applied to extraordinary exercises of delegated power. Then he turned and publicly scolded Barrett, his ideological ally who reached the same result, for intellectual imprecision in her "common sense" framing. They agreed on the outcome. He couldn't let the reasoning slide.

Read Gorsuch's concurrence in full (PDF) → · Decided February 20, 2026

Gorsuch wrote for a 5-4 majority — joined by the four liberals — holding that the Creek Nation's reservation had never been disestablished by Congress, meaning a vast swath of eastern Oklahoma, including much of Tulsa, remains Indian Country for purposes of federal criminal jurisdiction. The practical consequences were enormous: decades of state criminal convictions potentially invalid, jurisdictional chaos across a major American city. Gorsuch didn't blink. Congress never explicitly disestablished the reservation. Therefore it still exists.

The opinion is built on the same foundation as his Learning Resources concurrence — deep immersion in 19th century treaty history and congressional practice — and reaches the same structural conclusion: extraordinary consequences require explicit congressional authorization. If Congress wants to take something enormous away from a sovereign people, it must say so clearly. The size of the consequence does not loosen the clarity required of the text. If anything, it demands more.

Read McGirt v. Oklahoma in full (PDF) → · Decided July 9, 2020