JOHN RUTLEDGE WAS not an easygoing man.
Born in 1739 to an Irish immigrant doctor and a blue blood South Carolinian mother, Rutledge was strong-willed and proud. He started studying law at 17 years old and soon earned his place among Charleston’s elite as a wealthy, prominent attorney. He served as governor of South Carolina during the Revolutionary War and earned the nickname “Dictator John” for seizing unprecedented emergency powers during the war.
Rutledge’s hardheadedness was sometimes an asset: In 1776, with the British Army bearing down on Charleston, Continental Army General Charles Lee ordered the troops stationed at Fort Sullivan in Charleston Harbor to evacuate. The fort was only half-built, and Lee assumed the British would easily overtake it. But in a fiery note to Fort Sullivan’s commander, Rutledge told the troops to stay put. “General Lee wishes for you to evacuate the fort,” he wrote. “You will not do it without an order from me. I would rather cut off my hand than write one.” The troops managed to successfully defeat the British in a victory that is still celebrated every year in South Carolina as Carolina Day.
Despite—or perhaps because of—Rutledge’s willfulness, he was among the Founding Fathers trusted to help draft the U.S. Constitution. He was an accomplished attorney, a proven leader, and a man that both George Washington and John Adams considered a friend. Patrick Henry called him the greatest orator at the Continental Congress.
But in 1795 Rutledge earned a new, ignoble distinction: He became the first Supreme Court nominee to be rejected by the Senate.
The strange story of John Rutledge’s failed confirmation centers on an enduring norm that has been baked into the institution of the Supreme Court from its nascency: Justices, despite going through a nakedly political confirmation process, should not be political animals themselves. While the Court has never been untouched by politics, and Justices clearly have political views, the men and women who’ve served on the Court have largely adhered to this unwritten norm by refraining from divisive political rhetoric, being circumspect about matters of public policy, and avoiding behavior that would undermine the dignity of the Court as an independent, impartial, and nonpartisan institution.
John Rutledge is an example of what happens when you don’t do that.
The early Supreme Court
Rutledge was a natural pick for the Court in 1795—after all, he’d already briefly served on it.
The Supreme Court of early America was a work-in-progress. The Constitution, for all its ingenuity in designing the architecture of the national government, is surprisingly light on details when it comes to the mechanics of the judicial branch. Article III states that “the judicial Power of the United States, shall be vested in one supreme Court,” that judges “shall hold their Offices during good Behavior” (meaning, they don’t have term limits and may be removed only through the impeachment process), and that a Justice’s compensation may not be diminished while in office. The Constitutional Convention had debated whether the legislative or executive branch should be responsible for appointing Justices. The Founders settled on the executive, writing, in Article II, Section II, that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the supreme Court.”
The Constitution specifies in Article III, Section II that disputes between states as well as those involving ambassadors and other “public ministers” must be filed directly with the Supreme Court. Otherwise, the Justices hear appeals of “cases… arising under th[e] Constitution, the laws of the United States, and treaties made.”
And that’s about it: There’s nothing in the Constitution about how many Supreme Court Justices there should be, how often they should meet, or how exactly the Court should interact with inferior courts. The Constitution left it to Congress to fill in those details.
That’s not to suggest that the judiciary was an afterthought for the Founders. The Declaration of Independence lambasted King George for making “Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” An independent judiciary free from powerful influence was essential to the Founders’ idea of America—so much so that in 1776, John Adams told a friend, “[B]etween you and me, there is one point that I cannot give up. You must establish your Judges’ Salaries—as well as Commissions—otherwise Justice will be a Proteus. Your Liberty, Lives and Fortunes will be the Sport of Winds.” Adams later declared in his draft of the Massachusetts state constitution that “[i]t is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.”
The Judiciary Act of 1789 established a six-Justice Supreme Court. President George Washington nominated John Jay, his secretary of foreign affairs, as Chief Justice, noting that the position “must be regarded as the keystone of our political fabric.” He also nominated five Associate Justices, John Rutledge among them. The Senate approved all six by voice vote two days later.
But life as a Supreme Court Justice was decidedly unglamorous in 1789. The Court had no building of its own. The Justices met first in the Royal Exchange in New York, then moved to a hall in Philadelphia when the nation’s capital relocated. Worse, Justices were expected to “ride circuit” twice a year: They had to travel by horseback through their assigned circuit region—which could be remote and rural—to hear cases.
Rutledge lasted only 18 months as an Associate Justice. He frequently skipped the Court’s meetings and resented being responsible for the Southern Circuit, which required especially arduous travel. (The Southern Circuit was so difficult to traverse that Rutledge’s successor on the Court, Thomas Johnson, lasted only five months.)
Rutledge abruptly left the Supreme Court in 1791 for a higher-paying job as Chief Justice of the South Carolina Supreme Court. There he might have been content to remain indefinitely—but in 1795, Rutledge’s pride and ambition led him to pen a letter to President Washington asking to be re-appointed to the Supreme Court, this time as Chief Justice.
He didn’t know it, but that letter marked the beginning of the end of his career.
The nomination
“I have held many posts of high rank and great importance,” Rutledge boasted to Washington in his letter dated June 12, 1795, “and have been under the necessity of refusing others; but they were offered spontaneously and handsomely.” He had never solicited a job, he assured Washington, “nor do I mean this letter as an application. It is intended merely to apprise you of what I would do if selected[.]”
Chief Justice John Jay had just resigned from the Court to serve as governor of New York after a particularly tumultuous period: Jay, despite being Chief Justice, had been tasked by President Washington and Treasury Secretary Alexander Hamilton with traveling to Britain as special envoy to negotiate a second treaty, which would become known—and derided—as the Jay Treaty. The British had failed to abandon all the American forts they’d agreed to exit in the 1783 Treaty of Paris. Moreover, British exports were flooding the American market, and Royal Navy ships had impressed American sailors into service and confiscated military supplies bound for France. James Madison and others were pushing for a trade war with Britain. But Washington and Hamilton wanted to de-escalate tensions between the two nations. Jay, under their guidance, negotiated a treaty that successfully closed British forts but let the British largely off the hook for other misdeeds.
Many Americans were furious. When Jay came back home, he said in jest that he could find his way from Boston to Philadelphia at night by the light of his burning effigies.
When Jay stepped down as Chief Justice in the summer of 1795, Rutledge seized his opportunity. In his letter to President Washington, he (rather boldly) suggested that he, not Jay, should have been made Chief Justice in the first place. “[M]any of my friends were displeased at my accepting the office of Associate Judge,” he informed Washington, “conceiving (as I thought, very justly) that my pretensions to the office of Chief Justice were at least equal to Mr. Jay’s in point of law-knowledge, with the additional weight of much longer experience and much greater practice.”
Washington wasn’t put off by Rutledge’s assertiveness. In his July 1 response, Washington told Rutledge that he was now Chief Justice of the United States, effective immediately. The Senate was not in session, so Washington was able to appoint Rutledge as a recess appointment, with Senate approval to come later.
“[W]ithout hesitating a moment, after knowing you would accept [the position of chief justice], I directed the Secretary of State to make you an official offer of this honorable appointment,” Washington’s letter read.
Rutledge had succeeded. He was now head of the highest Court in the nation.
But a few weeks later, despite the honor and judicial responsibility Washington had just bestowed upon him, Rutledge did something foolish.
“A delirium of rage”
On July 16, Rutledge attended a demonstration against the Jay Treaty at St. Michael’s Church in Charleston, where he gave a scathing speech. According to witnesses, Rutledge denounced the treaty and said “that he had rather the President should die, dearly as he loved him, than he should sign that puerile instrument,” and that he “preferred war to the adoption of it.”
By the time he arrived in Philadelphia weeks later to take his seat on the Supreme Court for the August session—the recessed Senate still not having voted on his appointment—news of Rutledge’s ill-advised speech had spread across the country.
“The most prominent orator on that occasion was Judge Rutledge,” one newspaper reported, “who uttered the most gross invectives both against the President Washington, as well as Mr. Jay, for having sacrificed the interests of the American States to the king of Great Britain[.]” Another paper described Rutledge’s speech as consisting of “the silliest expressions that ever fell from human lips.”
Federalists, who largely supported the Jay Treaty, were furious. Rutledge had publicly and viciously come out against a policy decision of the president only weeks after accepting that president’s nomination. And the nominated Chief Justice had inserted himself into the heated political debate over the Jay Treaty in a way that even John Jay, for whom the treaty was named, had carefully avoided doing.
Alexander Hamilton published an editorial calling Rutledge’s speech a “delirium of rage” that brought “mortification” to the Federalist party, asking, “[W]hat are we to think of the state of mind which could produce so extravagant a sally?” Oliver Wolcott, one of the signers of the Declaration of Independence, called Rutledge a “driveller and fool.” Secretary of State Edmund Randolph described Rutledge’s “attachment to the bottle, his puerility, and extravagances, together with a variety of indecorums and imprudencies.” Senator Oliver Ellsworth, coauthor of the Judiciary Act that had established the role of Chief Justice, said Rutledge had “act[ed] like a devil.” William Davie, a North Carolina politician (and founder of the University of North Carolina), publicly wondered whether Rutledge “raves on the bench as he does at a town meeting.”
With one speech, Rutledge had caused a political firestorm that was turning a whole party—technically, his own party—against him. He had “lost his Olympian position of a proud, preeminently honored and respected first citizen,” as the South Carolina Historical Society puts it. “He was now a highly controversial figure.”
But the Senate wasn’t scheduled to vote on his appointment until December. So, for four months, Rutledge served as Chief Justice—and waited to see if the axe would fall.
Rejected by the Senate
President Washington could have withdrawn his support for Rutledge. But despite the insults Rutledge had hurled in his speech at St. Michael’s Church, Washington formally submitted his appointment to the Senate on December 10, 1795, as promised.
Five days later, after an energetic debate, the vote to confirm Rutledge failed 10 to 14. Eight of the Senate’s 32 members did not participate in the vote, perhaps unwilling to go on record one way or another. Of the 14 who voted against Rutledge, 13 were Federalists and all 14 had voted in favor of the Jay Treaty.
“The rejection of Mr. Rutledge by the Senate is a bold thing,” Thomas Jefferson complained, “because they cannot pretend any objection to him but his disapprobation of the treaty.”
Rutledge, by speaking out so recklessly on a divisive political issue, turned his confirmation vote into a referendum on the Jay Treaty. He had also repulsed many Americans—including, perhaps, the eight senators who didn’t show up for the vote—who believed a Justice of the Supreme Court should be more publicly reserved on matters of politics. John Adams wrote in a letter to his wife that the Senate’s rejection of Rutledge “gave me pain for an old friend, though I could not but think he deserved it. Chief Justices must not go to illegal Meetings and become popular orators in favor of Sedition, nor inflame the popular discontents which are ill founded, nor propagate Disunion, Division, Contention and delusion among the people.”
John Rutledge reacted to the Senate’s rejection in about the worst way a man can: Two days after Christmas he tried to commit suicide by jumping off a Charleston wharf. After rescuers pulled him out of the water, Rutledge reportedly told them that “he had long been a Judge and he knew no law that forbid a man to take away his own life.”
A lesson for Justices
Less than a year after Rutledge’s failed confirmation vote, George Washington gave his farewell address.
In it, he warned the nation about “the danger of parties in the State” and, in particular, about those who would “make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.” He closed his address by saying he looked forward to enjoying in retirement all that he helped create, including “the benign influence of good laws under a free government.”
America’s founders understood that the judicial branch, entrusted with the power to decide disputes implicating Americans’ rights, could not be steeped in the same partisan division and heated political rhetoric that already plagued the other two branches of government less than a decade into their existence. Supreme Court Justices needed to be above the fray and, to quote John Adams, “as free, impartial and independent as the lot of humanity will admit.” The promise of America as a just nation would depend on it.
While Supreme Court Justices have occasionally expressed their policy or political views over the years, on balance, they’ve been more careful in tone and substance than John Rutledge was in 1795. Most Justices have adhered closely to the ethical norms of the Court and refrained from speaking out in ways that could be seen as overtly partisan or divisive.
And when Justices do step out of bounds, they face public reprimand: Justice Samuel Chase, an outspoken Federalist known as “Old Bacon Face” who publicly supported John Adams’ re-election campaign in 1800, was impeached for “prostitut[ing] the high judicial character with which he was invested, to the low purpose of an electioneering partisan.” The Senate ultimately acquitted Chase in 1805.
More than two centuries later, another presidential election prompted a Justice to share her thoughts. In 2016, after Justice Ruth Bader Ginsburg gave a series of interviews criticizing then-presidential candidate Donald Trump, The New York Times editorial board said it was “baffling” that Ginsburg would “call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.”
Shortly thereafter, Ginsburg released a statement saying she regretted her remarks. “In the future I will be more circumspect,” she said.
