William Cushing

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Not long after his tenure on the Massachusetts bench began, a controversy arose over revelations that court judges were to be paid by crown funds from London rather than by an appropriation of the provincial assembly. Cushing did not express any opinion on the matter, but declined the crown payment in preference to a provincial appropriation.

After the American Revolutionary War broke out in April 1775, the Massachusetts Provincial Congress (which exercised de facto control over the province outside besieged Boston), sought to reorganize the courts to remove the trappings of British sovereignty. Consequently, it essentially dissolved the Superior Court and reformed it in November 1775. Of all its justices, Cushing was the only one retained.

The congress offered the seat of Chief Justice first to John Adams, but he never sat, and resigned the post in 1776. The provincial congress appointed Cushing to be the court's first sitting Chief Justice in 1777. He was a charter member of the American Academy of Arts and Sciences (1780). He would sit as Massachusetts Chief Justice until 1789, during which period the court ruled in 1783 that slavery was irreconcilable with the new state constitution, and it was ended in the state.

In 1783, Cushing presided over a series of cases involving Quock Walker, a slave who filed a freedom suit based on the language of the new state constitution. In Commonwealth v. Jennison, Cushing stated the following principles, in his charge to the jury:

This was taken to mean that slavery was incompatible with the state constitution ratified in 1779, and that slavery was therefore ended in the state. The case relied on a 1781 freedom suit brought by slave Elizabeth Freeman, also known as Mum Bett, on the same grounds; a Massachusetts county court ruled in her favor in 1781.

During Shays' Rebellion (1786–87), Cushing ensured that court sessions continued, despite the aggressive protests of the armed rebels, and later presided over their trials. A year later, in 1788, he served as vice president of the Massachusetts convention, which narrowly ratified the United States Constitution.

On September 24, 1789, President George Washington nominated Cushing for one of the five associate justice positions on the newly established Supreme Court. His appointment (along with those of: John Blair Jr.; Robert H. Harrison; John Rutledge; and James Wilson; plus that of John Jay for Chief Justice) was confirmed by the Senate two days later. Cushing's service on the Court officially began February 2, 1790, when he took the Judicial oath. He generally held a nationalist view typically in line with the views of the Federalist Party, and often disagreed with Thomas Jefferson's Democratic-Republicans. His two most important decisions were probably Chisholm v. Georgia and Ware v. Hylton, which held that treaties made under the Constitution supersede state law. Though he served on the Court for two decades, only 19 of his decisions appear in the United States Reports.

Cushing administered the oath of office at Washington's second inauguration on March 4, 1793. This was the first inauguration to take place in Philadelphia (then the nation's capital).

When Chief Justice John Jay resigned from the Court in June 1795, during a long Senate recess, Washington appointed John Rutledge as the new chief justice by a recess appointment. On December 15, 1795, during the Senate's next session, it rejected Rutledge's nomination. Washington subsequently nominated Cushing on January 26, 1796; the Senate confirmed the nomination the following day.

Cushing received his commission on January 27, but returned it to Washington on February 2, declining appointment. An error in the rough minutes of the Court on February 3 and 4, 1796, lists Cushing as Chief Justice, although this entry was later crossed out. This error can be explained by the text of the Judiciary Act of 1789, which allowed for the Court to hear cases with a quorum of only four justices; that is, the Chief Justice need not always be present for the Court to conduct business. As Cushing was the most senior associate justice present on those dates, he would have been expected to serve as the presiding justice, directing the Court's business.

Washington then nominated Oliver Ellsworth to be chief justice, transmitting the nomination to the Senate in a March 3 message stating that Ellsworth would replace "William Cushing, resigned." Subsequent histories of the Court have not counted Cushing as chief justice, but instead report that he declined the appointment. Had Cushing accepted promotion to chief justice and then resigned, he would have had to leave the Court entirely; accepting the appointment would have implicitly required Cushing to resign his place as associate justice. That he continued on the Court as an associate justice for years afterward lends weight to the assertion that Cushing declined promotion. Additionally, Cushing's February 2 letter explicitly stated his return of the commission for chief justice, and his desire to retain his seat as associate justice.

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