Path to the Supreme Court
William Cushing was a judge of the first rank under three sovereigns — the province, the commonwealth, and the nation. Born in 1732 into a Massachusetts family of judges, he succeeded his own father on the province's highest court, and when revolution came he was the only member of that court to side with the patriots — keeping his seat when the new Commonwealth reconstituted it.
His most consequential act came before his federal career began. In Commonwealth v. Jennison (1783), a criminal assault case arising from an owner's attempt to recapture a man he claimed as a slave, Cushing charged the Worcester jury that slavery was incompatible with the new Massachusetts constitution: "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." There was no statute. No legislature acted. Slavery ended in Massachusetts by judicial interpretation alone — in 1783, eighty years before the Thirteenth Amendment.
He kept the Massachusetts courts open during Shays' Rebellion when armed mobs surrounded the courthouse — bayonets rapping on his chest, face blanched, step firm — then presided over the rebels' treason trials. He was the pivotal figure at the Massachusetts ratification convention. Washington made him one of the original six justices in 1789.
On the Supreme Court
Cushing served twenty years, the longest of Washington's original appointees, and was the last judge in America to wear a full wig on the bench. Contemporaries described a sensible, modest man "remarkable for the secrecy of his opinions," respected by every faction through every change of party.
In 1796 the Senate unanimously confirmed him as Chief Justice. That evening Washington turned to him at a dinner party and announced, 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 — sixty-eight words declining the highest judicial office in the country, citing his "infirm & declining state of health." No favors requested, no consolation prize sought. He remained an associate justice until his death in 1810 — by the conventional account, the only person ever confirmed as Chief Justice who declined to serve.
Or almost declined. Legal historian Ross Davies has argued, from the Court's minutes and the appointment records, that for that week in February 1796 Cushing actually was the Chief Justice of the United States — that he held the office briefly before returning the commission and his associate seat. The Court's official history disagrees. It is a small, live dispute, and this site flags it rather than settles it: either way, the man mailed back the highest judicial office in the country in sixty-eight words.
The Voting Record
How Cushing voted in the 234 cases the Supreme Court Database records from the 1791 term through the 1810 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Coverage · The database begins with the 1791 term. Cushing took a seat in 1790, so these figures describe the 1791–1810 portion of the tenure, not the whole of it.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Commonwealth v. Jennison (Massachusetts)
1783Holding · Slavery is incompatible with the Massachusetts Constitution's declaration that "all men are born free and equal."
Role · Cushing, as Chief Justice of Massachusetts, delivered the jury charge that abolished slavery in the state.
The first judicial abolition of slavery in American history. Rugg noted that the same "born free and equal" language appeared in Virginia's first constitution — and no Virginia court ever raised the question.
Read the opinion →Chisholm v. Georgia
1793 · 4–1Holding · States may be sued by citizens of other states in federal court.
Role · Cushing joined the majority with a characteristically plain, textual seriatim opinion.
Overturned by the Eleventh Amendment — the Court's first great collision with popular politics.
Read the opinion →Go Deeper
No dedicated full-length biography of William Cushing has ever been written — a gap Arthur P. Rugg called conspicuous as far back as 1920. The scholarly literature consists entirely of articles and chapter-length treatments. Until a biographer takes up the subject, the resources below are the map of what exists.
The Bookshelf
Written by the sitting Chief Justice of Massachusetts, who had access to family papers and contemporaneous accounts no longer easily available — the manuscript sketch by Charles Cushing Paine, the New England Palladium obituary of 1810, and Josiah Quincy's personal assessment. The most complete portrait of the man.
The best modern starting point. Gerber reassesses the assumptions that made Cushing seem merely passive or obscure, and reconstructs his constitutional outlook from his Massachusetts career, circuit work, and sparse Supreme Court record. Concise, analytical, and available through the open-access edition of Seriatim (NYU Press).
The strongest focused treatment of Cushing's role in the Quock Walker cases and the effective end of slavery as a legally protected institution in Massachusetts — and it confronts the tension between Cushing's constitutional ruling and his own social and family connections to slaveholding New England.
A detailed revisionist study of the strange 1796 episode. Davies argues from court minutes, appointment language, and contemporary correspondence that Cushing actually served briefly as Chief Justice. Important and carefully documented — though it has not displaced the Court's official account that Cushing declined the office.
The essential research collection for Cushing's federal judicial work: appointment records, correspondence, circuit-court materials, press accounts, and the rough and final Court minutes central to the chief-justice controversy. Indispensable for checking claims made in the secondary literature.
The foundational modern examination of the 1783 Jennison ruling that tradition credits with ending slavery in Massachusetts — and of how much (or little) Cushing's jury charge actually decided. The starting point that later scholarship, including the Downs article on this shelf, argues with.
O'Brien's publication of a speech Cushing drafted for the Massachusetts ratifying convention but never delivered — one of the few windows into the constitutional thinking of a justice who left almost nothing on paper. A companion to the law-review studies on this shelf.
No biography of Cushing has ever been published — and this dissertation is the only full-length life ever written, by the scholar who owned the subject (the same John D. Cushing whose Quock Walker article is on this shelf; he became librarian of the Massachusetts Historical Society). The standard sketches, including the Friedman & Israel chapter, lean on it. Unpublished, but obtainable through ProQuest or interlibrary loan — and worth the trouble for anyone serious about Cushing.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Gerber — for the best modern overview of Cushing's life, jurisprudence, and historical reputation
- 2.Rugg — for the compact traditional biography devoted solely to Cushing
- 3.Downs — for Quock Walker, slavery, and Massachusetts constitutionalism
- 4.Davies — for the disputed 1796 chief-justice appointment
- 5.The Documentary History — for original records and detailed research
- 6.Flanders — for nineteenth-century biography and the evolution of Cushing's reputation
Where the Papers Are Kept
The William Cushing family papers (1657–1840): correspondence, legal papers from his Supreme Court tenure, and the 1783 judicial notebook documenting Commonwealth v. Jennison.
Cushing's February 2, 1796 letter returning the Chief Justice commission to Washington. Visit →
Online Resources
Ideas for Further Research
- Rugg put it plainly in 1920: Cushing served fifty continuous years on courts of last resort, abolished slavery in Massachusetts by reading a constitution's plain language, declined the Chief Justiceship by mail, and declined the governorship when both parties nominated him. That no biographer has taken him seriously is one of the most conspicuous gaps in American legal literature.
- A comparative study of Jennison and the Virginia constitution's identical 'born free and equal' clause — why one state's judiciary acted and the other never did.