Path to the Supreme Court
Smith Thompson rose through the legal dynasty of early New York: law study in James Kent's office, marriage into the Livingston clan, a seat on the state Supreme Court in 1802 and its chief justiceship in 1814, then Washington service as Monroe's Secretary of the Navy. In 1823 Monroe gave him the Supreme Court seat of his late wife's kinsman Brockholst Livingston (§15). Ambition never fully banked: in 1828, without leaving the bench, he ran for governor of New York and lost to Martin Van Buren.
On the Supreme Court
Thompson became the late Marshall Court's in-house skeptic — friendlier than his chief to state regulation of commerce, readier to check the executive. His finest hour was the dissent in Cherokee Nation v. Georgia (1831), joined by Story (§18), insisting the Cherokee were a foreign state entitled to the Court's protection; Marshall (§13) himself encouraged its publication, and within a year its reasoning prevailed in Worcester v. Georgia. In Kendall v. United States (1838) he wrote for the Court that a cabinet officer is subject to mandamus to perform a ministerial duty — the executive is not beyond the law's command. He dissented alone against the original-package doctrine in Brown v. Maryland, wrote in the Ogden v. Saunders majority, and served until his death in 1843.
The Voting Record
How Thompson voted in the 827 cases the Supreme Court Database records from the 1824 term through the 1843 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.
Where Thompson sat among the colleagues on the same bench — and whether that Court divided clearly enough for the question to have an answer — is laid out Court by Court. See this Court →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Cherokee Nation v. Georgia
1831Holding · The Cherokee Nation was held not a 'foreign state' entitled to invoke the Court's original jurisdiction against Georgia.
Role · Thompson dissented, joined by Story (§18): the Cherokee were a sovereign foreign state entitled to sue and to an injunction.
Marshall (§13) encouraged the dissent's publication; a year later its reasoning became the law in Worcester v. Georgia.
Read the opinion →Kendall v. United States ex rel. Stokes
1838Holding · A federal court may issue mandamus compelling the Postmaster General to perform a purely ministerial duty.
Role · Thompson wrote for the Court.
The executive is not beyond judicial command — a cornerstone later generations reached for, from the steel-seizure case to the subpoena fights.
Read the opinion →Brown v. Maryland
1827Holding · Maryland's license tax on importers fell as a duty on imports; goods in their 'original package' remain beyond state taxation.
Role · Thompson dissented alone.
His skepticism of the original-package doctrine anticipated the states'-rights commercial turn of the Taney (§24) years.
Read the opinion →Ogden v. Saunders
1827Holding · A state insolvency law operating only on contracts made after its passage does not impair the obligation of contracts.
Role · Thompson wrote one of the four majority seriatim opinions.
Part of the majority that handed Marshall (§13) his only constitutional dissent.
Read the opinion →Go Deeper
Mr. Justice Thompson and the Constitution (Garland, 1987) by Donald Malcolm Roper — the only full-length study ever written: a 1963 Columbia dissertation that Garland put between hard covers a quarter-century later. No trade biography has ever replaced it, which is itself the finding. The judicial record it covers is abler than the obscurity suggests — including the Cherokee dissent the Court adopted as law a year later.
The Bookshelf
The whole arc: the Poughkeepsie law office shared with Gilbert Livingston, the New York bench under and after Kent, the Navy Department, the presidential itch, and twenty years of judicial work — including the Cherokee dissent. A dissertation in book's clothing, with the virtues (thoroughness) and vices (dryness) of the form. Garland; originally a Columbia dissertation, 1963.
The one modern monograph in which Thompson is a principal character — how four justices actually made law on circuit, where the vast bulk of their judging happened. Lynch follows Thompson through the Second Circuit docket he inherited from Brockholst Livingston; the book doubles as a group portrait of three other justices on this site (see Bushrod Washington, Livingston, and Story). Hart Publishing.
The standard accessible account of Cherokee Nation v. Georgia and Worcester v. Georgia — the litigation that produced Thompson's finest hour. Georgia's land hunger, Jackson's removal policy, the Cherokee legal strategy, and the dissent — written, at Marshall's quiet encouragement, after the majority turned the Cherokee away on jurisdiction — that the Court came most of the way to adopting in Worcester a year later. Reissued by Oklahoma, 2004.
The compact standard account: the Kent apprenticeship, the New York bench, the Navy years, the 1828 gubernatorial adventure, and the major opinions. Fair, brisk, and honest about a justice history has filed under Marshall's shadow.
Thompson's cameo in the era's most dramatic case: as Second Circuit justice he presided over the frenzied September 1839 circuit proceedings in Hartford — crowds, habeas petitions, the world's press — and held the federal courts had no jurisdiction over the murder and piracy charges, keeping the case alive on the property claims that eventually reached Story and the Supreme Court (see the Story page). Oxford; revised edition 1997.
The dissent that became law. Marshall's majority called the Cherokee a "domestic dependent nation" that could not sue; Thompson, joined by Story, answered that they were a sovereign people with treaties, borders, and the right to the Court's protection. Worcester v. Georgia adopted much of its substance the following year. The clearest single display of Thompson's judicial quality — free online.
The institutional frame once more — with Thompson as one of its late-era complications. White is good on how the arriving New Yorker loosened the Marshall consensus: he dissented more freely than the older cohort, kept his political ambitions openly alive, and marks the transition toward the more fractured Taney Court he would live to serve on. Oxford University Press.
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.Roper — for the only full study — the whole arc from the Poughkeepsie law office to the Court
- 2.Norgren, then the dissent itself — for the Cherokee cases and Thompson's finest hour
- 3.Lynch — for the circuit work — where an early justice's real judging happened
- 4.Jones — for the Amistad proceedings on Thompson's circuit
- 5.The Friedman & Israel chapter — for the compact standard account
- 6.White — for the Marshall consensus that Thompson helped loosen
Where the Papers Are Kept
The largest Thompson collection — 106 items, 1796–1843 — with further papers at the Library of Congress (80 items), the Dutchess County Historical Society in Poughkeepsie (26 items), and Princeton University. A couple of hundred items in all: the thinness helps explain why Roper's dissertation has had the field to itself for sixty years. Visit →
Online Resources
Ideas for Further Research
- The Livingston-orbit thread, continued from Brockholst Livingston: Thompson read law under Kent, partnered with Gilbert Livingston, married his partner's daughter Sarah — and after her death, her cousin Eliza — then took over Brockholst's seat and circuit in 1823. The family, in effect, kept the chair.
- The great case study in politics-on-the-bench: Thompson hesitated over the seat while weighing the 1824 presidency, then ran for Governor of New York in 1828 against Van Buren without resigning. He lost — and the episode helped harden the norm against sitting justices seeking elective office.
- His Cherokee Nation dissent is the rare dissent vindicated within a year: Worcester v. Georgia (1832) adopted much of its substance. A justice's significance can hang on a dissent — the Duvall lesson, at far larger scale.