to supreme court. thank you for inviting with you this evening. my colleagues and ie work of th.

historic coal preserve the histy of the court, the constitution and, the judiciary, and to expand educational outreach to the public about that history. this evening marks a return to the court for the society's lectures, and we all also welcome our friends from mount vernon, for the society's turn to host what has been an interesting exchange of programs. tonight' supreme court historical■7 sociy in mount vernon. the topic is justice bushrod washington nephew of psident george washington. justice washington was appointed to this john adams in 1798 and consequential.

until 1829. our our speaker is phe is a disr university school of law. he's a graduate of$■b s school. following graduation school, professor magali oka as a law clerk calabrese easy on t. court of appeals for the second circuit. judge calabrese, as he was my torts professor in law magli oka and i learned a great of law and history and wisdom from judge■1 calabrese, professr mack leocha teaches and writes in the field constitutional law and the author of the book washing tins air the life of justice bush washington. professor magliozzi has authored four other b and, more than 30 articles on constitutional

d intellectual property. his sixth book will be released in 2025. it will be about the youngstown case and justice robert jackson. or, as we now like to refer to him, the first justice jackson. i look forward to that book as well. re, but that would take away from our time to hear aboutbushrod washington. please join me in magliocca gerard magliocca. thank you. chilton. thank you, chilton. thank you all for coming. are you all hearing me all right? so i want to express appreciation to the suprem court historical and to mount vernon for co-sponsoring this event and supporting my research. all along the way.

learned just today that digital paper washington papers is live as of years and so it's a nice fruition on the day of this talk i also am very pleased and, gratified really lecture since i was asked a few times whether i would prefer to give talk on zoom, and i found various ways saying no or absolutely because speak to all of you in this amazing spaceso we look around , is on far the court has come since the wbushrod washington was a justice. you probably know that court had no building of its own until

1935 when this building was built. and before that,in the capital. now, you though, what where did the court meet? when british burned the capital down during the12, when of that attack reached nd, chief justice marshall wrote justice washington at mount vernon and said, where are we going to sit? basically saying, problem in■m n and solve the courtroom problem by. convincing the clerk of the ur use his house. the front parlor of his house a. now try to i as there were at te time and therp lawyers hol in h.

what adds to story is tt the tht children. some of as young children often. they were running, playing, noise. the story goes that more than once the room, somebody had to say, supreme court is in session. okay, so from those humble beginnings, the court has become central much of the credit for t goes to bushrowanow, there weres to. his life, but my theme for tonight is that what we know the ma c was, created by a two men from virginia, john marshall and bushrod now in saying this i'm going to challenge misperceptions about the marshall■one is that john marshd

everything. he superhuman genius. that represented in this building by his giant sta■ie, and all other images in the building. all right. now, an alternative myth about the marshall it was the product, a partnership. but the partnership was between the chief justice and joseph story. that's depicted on the front door which has a panel it.ronz that's basically in conversation. oknow if it's true as i'm goingo th r marshall court is marshall andhi is it that jue washington oveooked. and answer is he wanted to be anonous anhe succeeded now

hean personal. he lived in america is motst attentionfamous name. and he didn't want more attention. but he alshaofreasons. he felt strongly that individual justices should keep a low profile and, th thelic's attention should be focused. the court as an institution. now he was so good at staying behind the sbasically forgotteny tonight. now, now i'm going to give kind of a brief sketch of his life before he joined the. bush rod is e eldest son of, george washington's younger brvher. now, jack is george wasng sibli.

george washington also had half wsiblings. jack mount vernon,ghting in theh indian war. inherited the estate if george had died in the war. that was the understanding between. the brothers. okay, so war. and jack and, s wi, rod, movedn slave plantation about 80 miles from mount vernon in westmoreland, virginia. and is there that bush rod is born and he's basicallycated at home until he's about in 80,s illiam and mary to enroll in what is basically a new kind of legal education program and sittg the om wh him is john marshall, who also happens toe tamarshall is recently discd

served under george washington at places. okay. theirtudies interrupted. but when the british virginia under cowa rival in tears for the state militia and regiment. but after washington for bush rod apprentn wilson, who is a signer of the independence one of pennsylvania. his greatest lawyers and later mportant role in the constitution or convention. george doe't know bush right. well, at this point he's really doing his brother. by arrangingd apprenticeship with wilson in these days, lawyers typically woulservasapprenticess

to before they went into practice. okay. but over the next couple of years, georgech other well they see each other often in philadelphia, at mount vernon, they travel together or they exchange lots of letters and george sort of takes bush rod under his wing and gives plenty of advice. now, the most important piece of advice, at least for purposes of this, is nephew, speak in public about politics as seldom as possible. and only when you're definitely sure about what you're saying. now, george wrote, a friend that his greatest hope for his nephew that would not, quote, become a babbler. now that's interesting, because it tells you a little bit about how washington thoug and sort on the political effectively.

but it's also advice bush took to heart because his uncle was a great influence kind of obviously in his life. and he wasler in his career. he alsodrew upon george's sound judgmentilding institutions because george washington very much was about building institutions after. the american revolution. okay. so i'm after completing his apprenticeship in philadelphia, bush rod returns to virginia, becomes a lawyer. marries julia blackburn, who whom the family referred to as nancy. her portrait is in theldrooms. but they have no childr. raise. some of their orphaned and■y ow. they're a devoted actually, they die within just two or three days of each other.

inshe was in poor health for muh of life. an rudd was a caretaker for her. he w robust. but with one exception, by the e this court, he could only out of one eye and his portrait is downstairs. you might catch it on the way out and you will see, if you look carefully, that one eye is not quite right. it'sor set off. it makes all more remarkable what he was able to do later in his career, given that he could only see outokay now, in 77, bus elected to the virginia house of delegates, part the state legislaturehe is reunited with o is also serving in the hse of. a year later are both elected as ■■delegates to the ratifying

convention in virginia for the titution. and they're both of course supporters of the constitution. as you'll see in a kind of it's anf the future pattern, marshall speaks pretty often intion. bush rod not at all. okay. now, he was keeping george apprized was going on through letters, detailed letters. but there was a problem, right. which is thatmight have said con attributedhad to stay st duringe proceedings and to let his sort of decision to preside over thek for itself. so bush, rudd, instead of trying to raise his own profile, which he could easily have done, stayed publicly silent, worked behind the scenes to the job

done. and ' basically going to be the theme repeated over and over ags, whatever the institutional goal was above his nal renown or okay. now, after the c tried concentrates on his legal becomf the top lawyers in virginia, mostly arguing appeals before the virginia court of appeals, which is the highest court, virginia. many occasions, his opponent is john marshall. i thwel like to have been going to time machine and go in here of what one of ueewa. and it was in this that they became close. they knew each other obviously before this. but they weren't close until they■d■p both living in richmonn the 1790s. they served together on the richmond city council. they siasometimes worked togethn cases when they weren't

competing for they complemented each other. and the best way i think of to describe it is marshall was th rod the anchor meaning marshall was bolder willing to take more risks. sh rod w cautious, probably hadsometimes. but you put that together and it team. now, they also had lot in they were both federalists politically. they were both slave owners. and the book goes into great detail about their not so great record on slavery. d they were both admirers of george washington from different vantage points. george also thought highlyboth . he strongly.

charth congress not as federalist because he was concerned about jefferson'spolitics. now, the way bush told this story years later, the two men were summoned to were told that they would congr. agree that they don't want to do this partly been giving up of r lucrative practice, partly because sure they could win win. but marshall said right. well, you have to go and tell want do this, because i'm not going to tell ■[■4them. and so bush rod went back into the house and those who had benjamin vernon know that george washington had his study kind of a special that basica he want that was his space to be with

his thoughts. bush rod goes in and lays it out for him as tos not such a good idea for the two of them trufor congress. and george listened at the end, he said to him, bush, rod, it must be done? query how many times did bush rod here that statement, you know, in hife so washington goes out and says to marshall well, he won'■he won't take no for an answer we have to do it. and so they they. okay. on the supreme court decides that virgs to get this vacancy. virginia is the most populous atno justices from, virginia. so the attorney g well, are thes john marshal washington exactly.all declines and it's

he seems to have been more ácampaign. he was more of a polit politic's say, than bushrod■q wngton. but bush rod accepted the offer. now, ofrse, three years later, right. president adams is going to prevail upon marshall to accept the chief justice ship and make them■dnow, in thisiobefore they are supreme court colleagues, so we're talking about 1798 to 1801 are wasngton and marshall are already working together on important projects related tog'. so george washington dies in 1799 and he makes bush write he. but there are issue estate and a

washingthelp and bush right marl jointly advise her about different aspects of george's will and bequests and so on. okay. more is that bush right? in addition to inheriting mount vernon also inherits all of george washington's papers, which givec'rise to the thought of having an authorized of ge washington bush right decides that perfect person to do thiis john marshall and they kind of have a handshake de to work on a series of books and they work on this it's multi-volume set called life of washington they work on this over a period of many years. they never make quite as much money ont still, it a pretty successfulnow their work on thek together is very revealing, and marshall would do drafts of

chapters or of an entire and then washington would go to richmonds house, which is still in richmond. some of you may have been there through it would make corrections and would sort of offer suggestions and changes. washington also served as a kind of research assistant. marshall we have a letter, for example, from bush rod to alexander hamiln you us some dt

some of the revolio w were invod in trying to make sure accurate? bush i'd worked on the maps and are now this also happened ireverse. bushrod washington wrote a two volume sets on the

virginia court of appeals and revised edition and he asked, can you go to the courthouse in richmond and check details on this case for me to make sure that i've got it right? and marshall says, okay. t was rather fond of seeing that because. it's like, oh, john marshall was the site checker, you know, a research assistant for somebody now, in effect, bush■8 rod was marshall's editor on these washmarshall, as much in the introductionr dedication of the book and we have plenty of letters from bh rod to the publisher describing their working process. have on some opinions together? it's impossible t none of marshall's survive. and marshall didn't, at least for anything, survive drafting

process. however, there are som suggesti. i mean, one is that we know that washinon a story. so it seems to pos■%e that he also would have collaborated with chief justice marshall on some■ú the other thing we know is that the justices were out writing in different parts of, the country, hearing appeals, doing trials, because that's most of supreme court justices did in this. they weren't in washington all much. they would frequently write to each other. and marshall in washington wrote to each other, hey, i have this difficult issue in this. what's your opinion or have this difficult issue? has it ever co up in one of your cases before? and if so, what did you do? so if that kind of orgoing on wt opinions. one has to imagine that in

that also was going on with supreme court opion we'll e proof of that someday. i hope so. i'met's come to kind of the marshall court, right? like w and why do i say that? this iswashington collaboration. first, you know what makes the marshall distinctive? one ing is lived together in a session they all eight together drank together discussed the cases over dinner together. right. and a lot of people believe that helps to explain how■1 they achieved a high degree of consent to this and unanimity in decisions it was just and convivial and that lent itself to ironing out disagreements.

. who was in charge of these arrangements? bushrod washington now we know that because, as i mentioned at the beginning ofhe talk when washington, d.c. damaged during marshall's first letter is to asking bush right where, aru know, like you're you got to figure this out. we also have many letters from washington where he his various attempts to negotiate sort of arrangements at this boardinghouse. okay. now, tellingly, when bush rod washington dies, that arrangement ends. so the very next(r term of the court, not of the justices, live together. some of them live separately. soon, all of them areg separately. so what? that is that washington wasn't . we don't know. but he was one that held it

together and made it work. and so that's sort of point number one. okay. more b did, most of the day to day e court. and here's an ele lawyer, a letf justice marshall and says, i'm to argue a case soon, but my wife is ill. i don't know if can make it. can i submit my argument in writing? and the chief justicwrit back and says, well only if justice washingtongrees. now, when i saw that, i sort of ebrow arched a bit, right? because like well he's the chief justice. need? justice, washington's consent to accede to this request? so the answer is that washington functioned informally as the

courts■v secretary, the keeper f the records when it came arguments, the docket and all of part because he was work slow but pag and everybody trustedim but see, all of you who worked in an organization know the personho charge of the paper flow. right. exercises a certain amount of influence over the culture of that place. u ow, wh)yher they're consciously that or not. so. okay. of living arrangements. he's basically in charge of all paperwork that's going on. all right. now, second, distinctive thing court is that the court speaks as often as possible, unanimous, partly in

an opinion by the chief jti■■■y. gh thing we remember the marshall court for the most, especially in the most decisions. okay. so well, where did that practice come from? and the answer is it came from the virginia court of appeals, the highest of virginia, which experimented with this same idea during the 1790s, when marshall and washington were cases before that court a time. they just took that idea and transplant it to the supreme court. . do we know that. so we know that because in part there is a letter, kind of a smoking gun of sorts by. justice william johnson, who■ñ s on this court for 25 years with washington marshall. he was appointed to the court by jefferson. he writes jefferson a letter

kind of spilling th's going on internally. and he startshe johnson had beee court judge, the supreme court of south carolina and. on that court. he had been used to writing an opinion for himself in basically every case, there was idea of beingnimous or having the chief justice write the court's opinion. but he said well, once i got here, i got, quote,lectures aboi was when the virginia high abandoned theice of having its head issue opinions on the court's and went back to having everybody their own opinion kind okay. a bit of a well, who was giving these lectures? right. so the first thought would be, well, it's the two justices from ■é

that court and closely followed thourt, as i mentioned earlier. justice wrote two volumes of ca reports on that court. okay. now, in e of letter justice, johnson decided to talk about what he thought about his colleagues. this one's too old. this one can't write. this one'sthen he gets to washid mahallnd he to jefferson. well, as you know, they are commonly esteemed as one judge. okay, two minds. e. okay. now, that, in a nutshell, is t argument that i make in the book about this aspect of things. and that's, you know, someone speaking from the inside of the court in a way and in a private letter, of course, not publicly.

lot of experience, sort of observing things close up. okay. now, why did the court want to the chief justice as often ast. and the answer is, it designed to strengthen theinstitution, jn as a story told a friend, very much discouraged separate opinions becausehought it weakened the authority of the court. different way of thinking about how justice washington fit into this approach or scheme. ■after 1810. bush rod, the senior associate justice on the court, which means that he presides when chief justice marshall is orn fe time. okay. so happens in those cases.

so you might think, well, this is washington's big chance to get to write more right. because he would have the power to assign thed he does write so. that he doesn't distribute to himself, which would have been a think the most senior person should write the opinion, he's now the most senior person. when the chief justice is absent. instead, he thinks carefully about, well, who's the best person toopinion in a way that will maximize the court's here's my example of t's see, is a very one of the most famous marshall court opinions and it's the most famous one not written by john marshall. now i'm going to give a very barebones description the interest of time. but basically this is a case din virginia between virginian

british from revoc9tiperiod. in effect, the question of, okay british loyalists left what happened to their land? you know, could be redistributed tobelong to the people who had abandoned it? and this was of a very hot controversy in virginia for many years an insupreme court issuedn written by■ basically the property interests in question because of the treaty that was made at the end of the revolutionary wstates own opinion, essentially tt to t you don't have authorittois th'e

soveren law. you don't have any authority. okay. so this presented a very direct al supreme authority. marshall w recused because his brother owned sompr affected byo washington then was acting chieft did he do? okay. first he put the case down for argument, kind of, i guess t■ roct docket or emergency docket of the day and ythen he doesn't assign the opinion himself. he assigns it to just a story. who writes probably his most famous supreme court opinion, rejecting the virginia court of appealsay. well, why why did he give it to story? why didn't he te it for people would know him better, because he would have written

thiswell, first of all, just the story had written the original opinion. so there was some important ecide that the same justice is going writeu have to follow it. second story wasn't from so the in the politics of the day or day having a virgia supreme court justice rebuke. the virginia court of appeals woul'od. it was better have somebody from outside of virginia it. third story was a much faster. and time was of the essence. washington of his limited was. a slower writer and whole point of out quickly as possible to in fatica say this virginia opinion is wrong. okay.

so again, it'washington puttingt above himself. he could taken the glory instead. he shared it, but also in a way that makes the court's institutionalay. now, those are two distinctive features of the marshalloardinge together, spoke as often as possibletaking this fromirginia. okay. now there's a third piece of evidence that kind of tells us something. the special we'll call it the special relationship, if you want to put it that marshall and washington. that is,dj decisions that affected the court others. no cin point, mccchryland, whicl court decision upholding the

sonality of the national bank, w#>■mas v certaif virginia, among■:re states righ. they didn't like the nationalist so chief justice marshall should. respond to these attacks by defending the opinion. now try to imagine that today. right. it's hard to thing but so okay. how does he make that happen? well, he sort of recruits pushrod into a bit of cloak and dagger operation where he gives washington the manuscript and he ■éokay, you got to get it to. the this newspaper editor, when you're visiting, you alexandria, are you visiting philadelphia, vian? and then sometimes he says something like, okay. and make sure you burn, you

know, the other court matching lettss so people can't like figure out that it was it was for me. course, not all that got burned because we know that he latefigured out that this happened. they not ask for permission from the other justices. okay. now, ian that that means the others didn't know. right. it's possible they did know or that they sort of in some informal sense made marshall and washington the standing committee of the court because they were the closest to washington d.c. but it's a pretty extraordinary eerie thing to take a risky action that without consulting the others and this is not the onlyort of thing happened. i mean, i don't have time to go into the all the other examples, t sometimes they functioned as if t court and

the others were something of the outer cour whether was with consent or understanding, i 't quite say. but astonishing either way. okay. so what have we kind of learned? not thisnt first we learned. okay, marshall didn't do everything on the marshallvñ court. and look, no chief justice can run the court by■,and indeed, if john marshall as a been a greats who are all expected somehow now to just sort of what the court does. and second, the basic of the marshall court were all in firmly in place before just a story joined. the story was john marshall's■ñ rod died in 1829 for the ma years of the marshall

court. but he he didn't replace and lat bush rudd played in john marshall's life andof washingt'h reachedly at the virginia constitutional convention, virginia was rewriting its constitution. and marshall was a delegate. and james and james monroe was delegate. lot of luminaries and marshall wroteon kind of poignant note where says jim says, look, i' room like, you know, fr grief. he said, you know, i need t los. kind ofright. he meant to m the court are when i was a law student, i

asked one of my professors wgren opinion? and his answer was, there's no suchprize. and i've come to seeheisdom of and that's especially telling when youironically the life of e person who of embodied the spirit that the law be impersonalby saying that bushrod washington was washington'3ubutl george washington's heirs us forward project that is america. to of think hard about those things. but but we all have to do so as well. so iha y listening i'm happy to take questions either here or out in the reception afterwards.

thank you very■@ much. can we take questions? we can take a few. okay. ■7?yquestions questions. shy. no, this was aft■er had left the presidency. so it was more of a little more of reminiscence of what the court had been like in some years before. hmm. you talked.

mr. so the interest was first from the t before a published book six and that he was kind of this person who kept coming up in the lives of other people. so you'd read about george washington, you'd see him. you read about john marshall, you'd see him you read about otherú, founders mean bush. right. also did legal work for. jefferson at one point. and, you knocourse, because of his family connections. interest from in terms of sources. his papers are much more scattered or at were until earlier today. right. it must said that a boo>vris to write it say 30 years ago would have been almost because you would have had toisit many places in person and go through boxes■b o. it would have taken an amount of

time now withzed in the way thay are. i mean, you can just go and get people to give you scans, right? so that's that's much easier. now, the main thing, though, that i found, which was, i think the most helpful source. was one of the justices so one of his workbooks with opinions with his notes on cases, including some is most famous opinion, which core versus coryell, which is one of his circlepinions is in the chicago history museum and. i didn't know that. mean no one else had, i guess noticed this before. someone brought it out to me. i can remember was sitting at a desk and someone said oh well here's something we have, you know, anh it and eyes got bigge, bigger as i went page it said gs corio und various notes. so it's interesting because look it's ve hard with someone from

ago to reconstructhos. you can't talk to them you can't talk to anybody who knew them. letters are only partly revealing, right? but when you can see someone talking themselves as did in his notesses? well that tells you quite a bit ■■ómore about things, especially when you can then compare it, say, to the final version and see what differences there were. so so that was the that was really the breakthrough because without that, i think the book would been a lot less illuna a similarities yeah, the question was are there stylistic similar these between say corfield or some of washington's other circuit court opinions and some of the

marshall courts opinions? okay. so the answer to isprobable two. one is justice. washington was very keen authors anddidn't about that so much. younions, if you read them often have, no citations at all, verw.tten a little more like an essay, which in some ways them more perasiv just the truth. right. right. but washington was more concerned about finding thor things. okay. however, a couple of circuit t he wrote you can find passagesto that others wroe marshall court later. actually, martin versus hunter's will see ionamthere is a part os

opinion that tracksto one of wat opinions that was also about the fact&■%hat state authorities could not defy federal courts. certain input there or there. but yeah, that that that's kind of the most that. comment on whether g refused ton appointment of his nephew to the supreme ur that his uncle provide an endorsement. yes. okay. no, that's so i said, you know, earlier, bush rod generally had judgment, so in after george , bushra does write a letter in which he

essentially you know i'm available forervices a u.s. attorney if if and he gets a strong rebuke. right. and then b■fh writes i think, a sort of funny sort of respon where he s almost like d getting caught in trouble, says something like, president that you would appoint that i th be sort of referring, you know, i mean, kind of a nonsense explana he ka big mistake. now, the interesting thing the is when he's named to the supreme court. of course, george wanted to run for congress. george was unaware bush rod wase court and justice. then justice. washington writes this very defensive letter to, his uncle saying,y■■ i hope you're not mad, more or less that i've appointment.

right. to which george replied, generals. no, no, that's. that's wonderful. actually, one little detai is know back then, as i mentioned, justices to travel around a to write circuit. and george's main bush. right joining the court was tras because it dangerous to travin road. and a lot of justices got hurt in stagecoach accidents basically now fortunately that that didn't happen but was like the main concern not oh you are taking this position. you're not running for congress as you might get hurt in a stagecoach accident. yes. all over washington and there. no no. yeah. the question was, did did bush have any role in the aaron burr hamilton? i assume you mean the hamiltonee alleged treason?

yeah. ■zzno. one re, maybe ■rmore so, yeah. there was a question there. an for. a great column. and especially the personalrelal fortune. there was a thi of the law school class there of around, who then became the chief in virginiath'h brought battle with a lot which was their personal that lasted for or was it obviously other forces. so yeahthe third notable in the nat law school group was later did become the head of virginia court of appeals and was a very strong states rights judge. personal amity. yeah, they didn't like each other that much, but i don't think that had anything to do with what happened when they were students. i think only developed later

whenfundamentally different views. the role of thederal government. i think you wl that tonight's s both informative and entertaining and we are very grateful. thank you. thank you. really. this about the■o between the sorry. the mt. vernon and the society. and i hope you'll be happy. learn that there will both be moving in october and we'll move

the venue to. i'm i'm sorry. i'm hoarse here that it be i think, a tri lecture and a authoritative. professor lindsay%(■3 shervin. she will share her third of secd president and tell how his leadership and for. those whogç followed and ensure the survival of the■q republic. we want to thank our host once and we appreciate his nd being here and allowing now to have this lecture, you like we should be pretty much on time

and we hope that you will stay and join■ov us in the reception which will take this evening in e ea hall, which you can find just the rear doors in the back of this chamber. ladies and gentlemen, we are adjourned adjourned. ■■z$g■'