In the Beginning: The First Three Chief Justices

It comes as a surprise to many—including a number of lawyers and law students—to learn that John Marshall was not in fact the country’s first Chief Justice, but rather its fourth (or, according to some recent scholarship, its fifth). Before there was Marshall, there were John Jay, John Rutledge (briefly), possibly William Cushing (even more briefly), and Oliver Ellsworth. While legal historians may be familiar with these nonhousehold names, all too often when these men, and the Court over which they presided from 1789 to 1800, do receive mention, it is only to be dismissed as inferior to what immediately followed. As Robert McCloskey aptly put it in The American Supreme Court, “[t]he great shadow of John Marshall . . . falls across our understanding of that first decade; and it has therefore the quality of a play’s opening moments with minor characters exchanging trivialities while they and the audience await the appearance of the star.” In the last ten years, scholars have begun to focus more attention on the preMarshall Court, but a certain derogatory attitude persists. One re-