welcome back to supreme court. thank you for inviting me to be with you this evening. my colleagues and i the work of the supreme court. historic coals to preserve the y of theand, the judiciary, and to

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'ss the supreme court historical vernon. the topic is justice bushrod washington nephew of presintjusd to this court by president john very consequential. our our speaker is professorhe r at, the indiana un law. he's a graduate of stanford and

school. following graduationrom law school, professor magali oka as a law clerk to the famed judge . court of appeals for t second circuit. judge calabrese, as he was my torts professor in law school, and i know that both professor magli oka and i learned a histom from judge calabrese, professor mack leocha teaches and writes in the field constitutional law and the author of the book washing tins air the life of justice bushrod washington. professor magliozzi has authored four other books and, more than 30 articles on constitutional law and intellroperty. his sixth book will be released in 2025. the youngstown case and justice robertke to reo

him, the first justice jackson. i look forward to that book as well. could say more, but that would take away from our time to hear about justice. bushrod washington. please join me in welcoming professor gerard magliocca gerard magliocca. thank you. chilton. thank you, chilton. thank you, justice kavaugh. thank you all for coming. are you all hearing me all right? yes. so i want to express appreciation to the supreme court historical and to mount vernon for co-sponsoring this event■n and supporting my research. all along the way. i learned just today that i learned ju pje bushrodt washington papers is live as of for years and so it's a nice

cifruition on the day of this talk. i also am very pleased and, gratified really to t lecture e the pandemic. times whether i would prefer to ge zoom, and s yi absolutely because how could i paspeak to all of ys amazing space? so we look around this room, this we're takg moment to reflect on far the court has come since the when bushrod 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 may not though, what where did the court meet?

whdown during the war of 12whend richmond, chief justice marshall wrote justice washington at mount vernon and said, where are we going to stay? are we to sit? basically saying, you have to■h by.ve this problem in washington convincing the clerk of the court to let the use his house. the front parlor of his house as e courtroom. now try to imagine seven ic as there were at the time and the lawyers holding arguments in house in the living now. what adds to story is that the the court had eight children. some of them young. and as young children often do. they were running, playing,

making noise. the story goes that more than once they burst into the room, somebody had to say, supreme court is in session. okay, so from those humble beginnings, the court has become central to rule of law. and much of the credit for that goes to bushrod washington. now, there were many dimensions his life, but my theme for tonight is that what we know the marshall court was, created by a remarkabletnween two men from virginia, john marshall and bushrod washington. now in saying this i'm going to challengeo common misperceptions about the marshallone is that john marshad everything. he was a superhuman genius. that represented in this ilding by his giant statue,

which is dowirs and all other images in the building. ■wall right. now, an alternative myth about the marshallourt is that it was the product, a partnership. but the partnership was between the chief justice and joseph story. front door of the building the bronze. that's basically marshalstory in conversation. okay. now if it's true as i'm going to that really the■1 marshall court is marshall and washington on is it that justice washington overlooked. l9and answer is he wanted to be anonymous and he succeeded now he wanted to be anonymous for personal. he lived in america is most fa h and he had america's famous name.

he didn't need attention and he didn't want more attention. but he also had professional reasons. he felt strongly that individual juices should keep a low profile and, that theli focused. the court as an institution. now he was so good at staying behind the scenes that he was basically forgotten by history until tonight. now, now i'm going to give kind of a brief sketch of his life before he joined the. bush rod is the eldeston of, george washington's younger brother. noú< jack is george washington's ll sibling. george washington also had half siblings. is away fighting in the french indian war. and jack washington would have

inherited the estate if george had died in the w. that was the understanding between. the brothers. okay, so geoe war. and jack and, his wife, hannah , their own slave plantation about 80 miles from mount vernon in westmoreland, virginia. and is there that bush rod is born and he's basically educated at home until he's about 18? at that in 80, he arrives at willi a enroll in what is basically a new kind of gal education program and sitting the room with m is john marshall, who also happens to be taking the same law marshall is recently discharged from the cne served under george washington at places. okay. theirtu british virginia

under cornwallis andush rival in tears for the state militia and sees actionn a cavalry regiment. but after george washington for bush rodo appren wilson, who is a signer of the declaration of independence one of pennsylvania. his greatest lawyers and later plays a very imp constitution o. george doesn't know bush right. well, at this point he's really doing his brother. jack, a favo■el- by arranging ad paying thisxw■a apprenticeship h wilson in these days, lawyers typically would serve as apprentices, established lawyers to before they went into okay. but over the next couple of years, george and right. get to know each other well they see each other often in ■nvel together or they

exchange lots 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 he s nephew, speak in public about pitic s possible. and only when you'reinitely sure about what you're saying. now, georgehis greatest hope fow was that would not, quote, become a babbler. that's right. now that's interesting, because it tells you a little bit about how washington thought about things■e and sort of operated in the political realm and of effectively. but it's alsodvice bush took to heart because his uncle was a great influence kind of obviously in his life. and he waski c his career.

he also sharethk or sort of drew upon george's sound judgment care for building institutions because george washington very much was about building institutions after. the american okay. so i'm after completing his ■ bush rod returns to virginia, becomes a lawyer. he marries julia blackburn, who whom the family referred to as nancy. her portrait is in the building, i believe, in onofrooms. but they have no children. but they do raise. some of their orphaned and nephs own. they're a devoted two or three days of each other. in 1829. was in poor health for much of life. and so often bush, rudd was a caretaker for her. he was more robust.

but with one exception, by the time he this court, he could only out of one eye and his you might catch it on the way out and you will see, if you look carefully, that one eye is not quite right. it's sort waer off. so he was depicted te. it makes all more remarkable what he was able to doater in his career, given that he could only see outokay now, in 77, bus elected to the virginia house of delegates, part the state legislature he is reunited with marshall who is also serving in the house las delegates to the ratifying convention in virginia for the constitution. and they're both of course supporters of the constitution. ■■now, as you'll see in a kind f it's aneshadowing of

the future pattern, marshall speaks pretty often in convention. bush rod not at was keeping geoe apprized of what was going on through letters, detailed but there was a problem, right. which is that might have said could have been attributed tgege and geoe had to stay silent during t andt of decision to preside over the constitutional convention speak for itself. so bush, rudd, instead of trying he could easily have done, stayed publicly silent, worked behind the scenes to the job done. and that's basically going to be the theme repeated over and over again. always, whatever the institutional goal was above his own personal renown or

notoriety. okay. now, after the constitution ratified, bush tried concentrates on his legal career d becomes one of the top lawyers in virginia, mostly arguing appeals before the virginia court of appeals, which is the highest court, virginia. and on many occasions, his opponent is john marshall. i think we'd all like to have been going to time machine and go in here of what one of those arguments was like. and it was in this that they became close. they knew each other obviously before this. but they weren't close until theyñ both living in richmond in the 1790s. they served together on the richmond city council. they socialize together and sometimes worked together on cases when they weren't competing for clients. they complemented each other. to describe it is marshall was the sale and bush anchor

meaning marshall was bolder willing to take more risks. bush rod was more cautious, probably had sound or judgment, sometimes. but you put that together and it's highly eff team. now, they also had lot in common, right? eralists politically. they were both slave owners. and the book goes into great detail about their not so great record on slavery. and they were both admirers of george washington from different nt points. george also thought highly both men and 1798. he]]q■>■7■@ strongly. charmed them into running r congress not as federalist because he was concerned about jefferson's growing influcepoli. now, the way bush told this storar later, the two men

were summoned to mount and they were told that they would congr. and then sh walk and they both re want to do this partly because they would have been giving up of their lucrative practice, partly because they didn't th win. but marshall saido bush, right. well, you have to go and tell them thawe want do this, because i'm not going to tell bush rod went back into the house and those who had washington had his study kind of a special that basicallyat was h his and lays it out for him as toaybe it's not such a good idea for the two of them to run for congress. and george listened at the end,

he said to him, bush, rod, it must be done? did bush rod here that statement, you know, in his life but so washington goes out and says to marshall well, he won't he won'o do it. and so they they. okay. before the election, though, ncy on the supreme court and, prid decidess to get this vacancy. virginia is the most populous state and therare justi from, virginia. so the attorney general says, are the two names john marshall bushrod washington now marshall declines and it's not clear why exactly. he seems to have been more committed to the policcampaign. he was more of a political s p's

say, than bushrod w bush rod ac. now, ofpresident adams is goingo prevail upon marshall to accept the chief justice ship and make them colagues the court. now, in this period before they supreme court colleagues, so we're about 1798 to 1801 are whi working together on important projects related to george washington's death. so george washington dies in 1799 and he makes bush write his principal heir. but there are issues. it' estate and martha washington is still living needl joinad 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 gives rise to the thought of authorized of george washington bush right decides that perfect person to do this is john marshall and they kind of have a handshake deala series of books and they work on thislumef washington and they work on this over a period of many years. they never make quite as much money on it as they were but still, it a pretty successful proctnow their work k together is very revealing, and marshall would dor of an entireo richmond and stay ar still in richmond. some of you may have been there

and they would through it line by line and washington would make corrections and would sort of offer suggestions and changes. washington also of research assistant. marshall we have a letter, for example, from bush rod to alexander hamilton saying, gee, n you us some details about some of the revolutionary wars d in trying to make sure accurate? bush i'd worked on the maps and illustrations are now this also happened in reverse. bu washington wrote a two volume set of appeals and later on he did 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.

and iéj■% was that was rather fd 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 editor on e washington books. marshall, as much in the introduction or dedicae book anf letters from bush rod to their describing their working process. is this how th might have on some opinions together? it's impossible to because none of marshall's survive. andarshall didn't, at least for anything, survive. ing describe hg process. however, there are some clues at suggestive. i mean, one is that we know that washington collaborated a stor. so it seems to possible that he also would have collaborated with chief justice marshall on

somenions. 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■k frequently write to each other. and marshall in washington wrote to eacher, hey, i have this difficult issue in this. what's your opinion or have this difficult issue? has it ever come before? and if so, what did you do? so if that kind of or excnge going on with respect to circuit opinions. one has to imagine that in person that also was going on with supreme court opinions. maybe we'll find some definite proof of that someday. i hope so. i'm let's comeo ki marshall co? like what is the marshall court

and why do i say that? this is a john marshall bushrod washington collaboration. okay. first, you know what makes the marshall distinctive? one thing is that they all lived together in an session they all eight together drank cussed the cases over dinner together. right. and a lot of people believe that helps to explain how 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. okay. who was in charge of these arrangements? bushrod washington now we know that because, as i mentioned at the beginning of t washington, d.c. damaged during the war, marshall's first letter is to asking bush right where, are we goi t

you 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, that boardinghouse. okay. now, tellingly, when bush rod washington dies, that arrangement ends. so the very next■5 term of the court, not of the justices, live some of them live separately. soon, all of them are living separately. so what? maybe it wasn't his idea. we don't know. but heheld it together and made it that's sort number one. okay. more broadly, washington did, most of the day to day

nd within the court. and here's an example. lawyer, a letter tf justice marshall and says, i'm wife is ill.ase soon, but i don't know if can make it. can i submit my writing? and the chief justice writes back well only if justice washington agrees. now, when i saw that, i sort of eyebrow arched a bit, right? because like well he's the chief justice. what?why does he need? justice, washington's consent to accede to this request? so the answer is thatlly as the courts secretary, the keeper of came arguments, the docket and all of that, that makes sense in part because he was work slow but■and

in an organization know the person who is in charge of the paper flow. right. exercises a certain amount of influence over the culture of that place. you know, whethethconsciously t. so. okay. he's of living arrangements. he's basically in charge of all of paperwork that's going on. ok.all right. now, second, distinctive thing about the marshall court is that the court speaks as often as possible, unanimous, partly in an opinion by the chief justice. righobably the thing we remember the marshall court for the most, especially in the most famous decisions. okay. so well, where did that practice come from? and the answer is it came from ■çthe virginia court of appeals,

the highest of virginia, which nted with this same idea during the 1790s, when marshall and washington were cases before that court all the time. they just took that idea and transplant it to the supreme court. okay. how do we know that. so we know that because in part there is a letter, kind of a smoking by. justice william johnson, whoon h ■washington marshall. he was appointed to the court by jefferson. he writes jefferson a letter kind of spilling the beans about everything that's going on internally. and he starts out by saying that he johnson had been a state courtth carolina and. on that court. her had been used to writing an

opinion for himself in basically every case, there was idea of being unanimous or having the chief justice write the court's opinion. but hell, once i got here, i got, quote, notlecturest high abandoned the praic head issue e court's everybody their own opid of in a bit of al. okay. well, who was giving these right. so the first thought would be, well, it's the two justices from virginia who practiced before that court and closely followed that■s court, as i mentioned earlier. justice wrote two volumes of case reports on that court. okay. now, in the next part 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'so.then he gets to wasd marshall a he to jefferson. well, as you know, they are commonly esteemed as one judge. okay, two minds. one judge. okay. now, that, in a nutshell, is the argument that i ke in the book about this aspect of things. and that's, you know, someone speaking from the inside of the court■f in a way and in a privae letter, of course, not publicly. gh lot of experience, sort of observing things close up. did the court want to speak through the chief justice as often as right. and the answer is, it designed

to strengthen theinstitution, jn as a sry told a friend, very much discouraged separate opinions beccourt. okay, but here's a sort of 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 orch e time. okay. cases. so you might think, well, this is washington's big chance to get to write morepinions. right. because he would have the power to assign the and he does write some of them. but is that he doesn't distribute to

himself, which would have been a if you think the most senior person should write the opinion, he's now the most chief justice is absent. instead, who's the best person to write this opinion in a way that will maximize the court'sho here's my example of s ma v hunter's let's see, is a very one of the most and it's the most famous one not written by john going to give ay barebones description of case in the interest of time. but basically this is a case involv p disputes in virginia between virginians and÷ british from revolutionary period. in effect, the question of, okay british loyalists left what happened to their land? you know, could be redistributed tos or did it belong

to the people who had abandoned it? and this was of a very hot controversy in virginia for many supreme court issued an opinion written by justito basically the u& property interests in question because me end of the revolutionarystates,f appeals, respond did with its own opinion, essentially tng supreme court to -- out that you don't have authoritto this the property claim we're sovereign slaw. you don't have any authority. ■íokay. supremepresented a very direct authority. marshall was recused because his

brother owned some property t■6t washington then was actingn. chiefokay, so what did he do? okay. first he put the case down for argument, kind of, i guess the rocket docket or emergency docket of the day and then 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 appeals okay. well, why why did he give it to story? why didn't he take it for 'd all people would know him better, because he would have written this well, first of all, just the story had written the original opinion. so there was some important symbolism saying you decide that the same justice is going wrisau have to follow it.

second story wasn't from so the in the politics of the day or day having a vginisu rebuke. the virginia court of appeals wouldn't look so good. it was better have somebody from third story was a much faster. and timeíu was of the essence. washington of his limited was. a slower writer and whole point of this was get is out quickly as possible to in fatica say this virginia opinion is wrong. okay. so again, it's an example of washington putting the court above could taken the glory instead. he shared it, but also in a way that makes the court's

institutional authority. okay. now, those are two distinctive features of the marshallved in e together, spoke as often as possibleice sort of taking this from evidence that kind of tells us something. the special we'll call it the special relationship, if you want to put it that, between marshall and washington. that is, decisions that affected the court others. now, case in■ point, mcculloch l court decision upholding the constitu personality of the national bank, was v certain paf virginia, among more states rights oriented. they didn't like the nationalist n. so chief justice marshall

should. respond to these attacks by writing some newspapers, defending the opinion. now try to imagine that today. right. it's hard to thing but;# so oka. how does he make that happen? well, he sort of recruits pushrod into a bit of cloak and daggertion where he gives washington the manuscript and he okay, 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 tter so people can't like figure out that it was it was for me. now, of course, not all that got burned because we know that he later figuouthey not ask for pem

the other justices. okay. now, i can't y 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 ■ycommittee of the court because they were the closest to washington d.c. but it's a pretty take a risky hat without consulting the others and this is not the only time this sort of thing happened. i mean, i don't have time to go into the all the other examples, sometimes they functioned as if they like the inner court and the others were something of the outer cour whether was with consent or understanding, i can't quite say. but astonishing either way. okay. so what have we kind of learned?

right.is point so first we learned. okay, marshall didn't do everything on the marshall court. and look, no chief justice can run the court by and indeed, i think the myth of john marshall as a been a greatw to just sort of control what the court does. and second, the basic of the marshall court were all in firmly in place before just a story joined. theice story was john marshall's after bush rod died in 1829 for the years of the marshall court. but he he didn't replace and he could not replace the role that bush rudd played in john when news of washington's death reached

actually at the virginia constitutional convention, virginia was rewriting its constitution. and marshall was a delegate. and james madison was a delegate. and james monroe was delegate. lot of and marshall wrote madison kind of poignant note where says jim says, look, i'm i can't come out of my room like, you know, from grief. he said, you know, i need not loss. kind ofright. he meant to court are when i was a law student, i o's the greatest americans who lawyer, in your and his answer was, there's no such thi' law as z@■ia llective prize. and i've comto see tof and tha'g

when you■■t: look at it through ironically the life of the person. right. but a person who of embodied the spirit that the law be impersonal and i closed e by sad washington was washington's heir. but in a sense, we are all george washington's heirs because we are all forward projs america. to of think hard about those things. ■'but but we all have to do so s well. so i thaou your for listening i'm happy to take questions either here or out in. thank you veryúk& much.

can we take questions? we can take a few. okay. questions questions. shy. no, this waspresidency. so it was more of a little more of reminiscencewhat the court had been like in some years before. hmm. you talked. wi■uth mr. so the interest was first from e 7eok about him 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 other founders mean bush. right. also did legal work for. jefferson at one point. and, you kw,erybody, of course,f his family connections. interest from in terms of sources. his papers are much more scattered or at were until earlier today. right. archives now it must said that a book is to write it say 30 years ago would have been almost because you would have had to visit many places in person and go through boxes of. it would have taken an amount of time now with digitized in the way that they are. i mean, you can just go and get right? so that's that's much easier. now, the 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, h core versus coryell, which is one of his circle and. i didn't know that. i 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, and through it and eyes got bigger, bigger as i wenthrou and saw, especially when i got to the page it said garfield versus corio underne various notes. so it's interesting because look it from ago to reconstruct thoug process. 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 notes on cases?

well that tells you quite a bit especially when you can then compare it, say, to the differences there w. so so that was the that was really the breakthrough because without that, i think the book lot less his work as a judge, hishe similaritiesimilarities. 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 is■$ñnprobable. one is justice. washington was very keenys cites

anddidn't about that so much. you know, opinions, if you read them often have, no citations at all,er're written a little more like an essay, which in some ways them more persuasiveem to e truth. right. i d'ng. right. but washington was more concerned about finding authority for things. okay. however, a couple of circuit opinions that he wrote you can find passages that rather well to that others wroteater. actually, martin versus hunter's will see is on there is a part of stories opinion that tracks to one of washington circuit opinions that was also about the fact t state authorities could not defy federal courts. ests a certain input there or there.

but yeah, that that that's kind of the most i say about that. comment on whether refused to en appointment of his nephew to the sue ephew that his uncle provide an endorsement. v?yes. okay. no, that's so i said, you know, earlier, bush rod generally had judgment, but so in after george gton elected, bushra does write a letter in which he essentially you know i'm available for if if and he s a strongright. and then bwhat is, i think, a sort of funny sort of

response whe he trs to say something almost like a child getting caught in trouble, says something like, oh, didn't■8 understand that the president that you would appoint that i thoughat be sort of referring, you know, i mean, kind of a nonsen explanation because he knew he had made a big mistake. now, the interesting thing then n he's named to the supreme court. run for congress. had george was unaware bush rod was de] consideration for the court and justice. then justice. washington writes this very defensive letter to, his uncle saying, i it. i hope you're not mad, more or less that i've decided accept this appointment. right. to which george generals. no, no, that's. that's wonderful. actually, one little detail■w is know back then, as i mentioned, justices to travel around a lot to write circuit. and george's mainment about bush. right joining the court was i

wished you have safe travels because it dangerous to tr 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 the controversy there. no no. yeah. the question was, did did bush have any role in the aaron burr hamilton? i assume you mean the hamilton duel mean the the alleged treason? yeah. no. one more, so, yeah. there was a question there. an■s for. a great column. relationships and personall

fortune. there was ahi of the law school class there of around, who then became the chief in virginia.t'g brought battle with a lot which was their personal for or was ir forces. so yeah so the third notable in the nat law school group was r rhone, who 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 when they had fundamentally different views. the role of the federal government. i think you will join■k me wheni say that tonight's lecture was both informative and

entertaining and we arethank yo. thank you. really. this about the between the sorry. the mt. society. and i hope you'll be happy. learn that there will both be moving in october and we'll move e venue to. i'm i'm sorry. i'm hoarse here that it be i think, a terrific lecture and a

authoritative. professor lindsay shervin. she will share her third oritive account of second president a telhow his leadership andce for. those who survival of the amerin republic. we want to thank our host once 28ain and we appreciate his gracious honesty and being here and allowing now to have this lecture, you hear now it's like we should be pretty much on time and we hope that you will stay and join us in the reception which will take this evening in the great hall, which you can find just the rear doors in the back of this chamber.

ladies a gentlemen, we are adjourned adjourned.

■o■ everyone i'm carter phis.