Who Were The Justices? James Wilson: 1789 to 1798


I was just taken to task in a private email over the piece I wrote on Harold Koh. Once again, the reader reminded me, I let my own sense of self-righteous hurt blossom into an unthinking attack on a good man. Koh deserves a reassessment, I am told. He is an activist and advocate with a heart.

I own the characterization of me. For whatever reasons, I lack the grace to leave a difficult past behind. Rather than make amends, I tear at things. The result is often not pretty. But was I wrong about Koh?

Do we need a trial lawyer on the high court? We can live without one, that is certain. But I would like to see someone who's bled, either in the trenches, or in real life, on the Court. Is asking for one such person out of nine too much? Koh comes from a privileged background, and has glided through a professional life that looks more like a fiction than the lives most folks lead.

What sorts of folks have become justices?, I wondered the other day. I've begun making notes on the brief biographies presented in The Oxford Companion to the Supreme Court of the United States. Starting at the beginning, I looked at the biography of the first person ever to serve on the Court, James Wilson.

Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.

He was born in Scotland in 1742 and began to read law with John Dickinson in 1765 in Philadelphia. In 1767, he opened a practice in western Pennsylvania. From an early age, he wrote extensively about government, and aspired to high political office. In 1775 he was elected to the Second Continental Congress; he was not at early supported of independence, but did sign the Declaration of Independence. He played an important role in the Convention that produced the federal constitution.

(Contemporary analogue: Top notch education as a lawyer and rapid rise through public service. The extent and nature of his practice is hard to discern in the brief biography.)

But here is the fascinating part. Wilson was appointed to the Court in 1789 as an associate justice. Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. "Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina." A justice in debtor's prison?

Wilson sat on the Court until his death in 1798, according to the Oxford Companion. Is it true that a sitting justice of the Supreme Court was actually imprisoned because of debt? And did he really go into hiding to avoid debt while a justice? Now here is a justice rubbed raw by experience, no matter how noble the early training.

Wilson's writing on government and law were staples of early American education. But it turns out he is far more than the some of these accomplishments. I'm looking for a copy Charles Paige Smith's biography of Wilson. James Wilson: Founding Father, 1742-1798 has long been out of print, but it tells a story I want to read.

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