THOMPSON, SMITH (1763–1843)

Smith Thompson was among the most experienced judges ever appointed to the Supreme Court, and his tenure on the bench (1823–1843) linked the constitutional doctrines of the marshall court and the taney court. After sixteen years on the New York Supreme Court (1802–1818), four years as chief justice, Thompson had been secretary of the navy (1818–1823). His experience in james monroe's cabinet made Monroe feel so comfortable with Thompson, presumably including his constitutional views, that the President insisted that the New Yorker fill the seat vacated by the death of a fellow New Yorker, h. brockholst livingston.

Thompson did not change his jurisprudence significantly during his twenty years on the Court. He remained a black-letter lawyer, whose most interesting contributions to constitutional jurisprudence can be traced to his New York judicial and cabinet experiences. Besides adhering to precedent, Thompson concerned himself with maintaining judicial independence while showing a willingness to let the legislature have free rein. Having served in an era when Congress was relatively inactive, Thompson appears today as a states ' rights advocate, or more precisely an adherent to states' responsibilities. Yet his values did not differ greatly from those of his nationalistic brethren on the Marshall Court. He was, for example, aware of the business community's needs. Unlike Livingston, his predecessor on the Marshall Court, Thompson was more willing to express his differences with the rest of the Court.

He was absent when gibbons v. ogden (1824) was argued, but in Livingston v. Van Ingen (1812), decided by the New York court, he had resolved some of the questions involved in Gibbons in favor of the steamboat monopoly. Although Thompson's Van Ingen opinion did not consider the commerce clause question, that of his colleague, james kent, did and commerce clause cases subsequent to Gibbons show that Thompson subscribed to Kent's doctrine of concurrent powers to regulate commerce. john marshall's language in Gibbons was, moreover, sufficiently broad to allow Thompson to render lip service to Gibbons while taking a contrary position. In brown v. maryland (1827), Thompson dissented from Marshall's majority opinion holding that Maryland's law imposing license taxes on wholesalers of imported goods violated both the import and export and the commerce clause. Like Kent, Thompson did not examine the nature of the power underlying state regulations. Whether the state regulated commerce or not was immaterial so long as the statute did not conflict with a congressional act. In rejecting Marshall's original package doctrine in Brown, Thompson set forth the position that goods became subject to a state's jurisdiction upon crossing its borders. Thompson continued his adherence to the doctrine of concurrent commerce powers in mayor of new york v. miln (1837), to the extent that he wrote separately rather than subscribe to the majority's reasoning that regulation of immigrant passengers was simply a valid exercise of the state police power. Subsequently, the concurrent powers doctrine became an integral part of roger b. taney's constitutional thought. Taney had not advanced that doctrine while arguing for the state in Brown, and it is reasonable to assume that he borrowed it from Thompson.

On the slavery question, Thompson assumed the doughface position later followed by his replacement on the Court, samuel nelson, of providing support for the peculiar institution, while striving to confine the question at hand and giving the appearance of sticking rigidly to precedent. Typical, in this respect, was groves v. slaughter (1841), where Thompson, speaking for the Court's majority, was able to avoid the question whether Mississippi's constitutional ban on uncontrolled slave shipments from other states violated the commerce clause. In prigg v. pennsylvania (1842), Thompson differed from joseph story's opinion that the fugitive slave clause did not prohibit state laws designed "faithfully" to enforce the clause. In contrast with Thompson's adherence to legal formalism in slavery cases was his activism in Cherokee Nation v. Georgia (1831). Dissenting, in the most elaborate opinion of his career, he asserted that regardless of their relative weakness to their white neighbors, the Cherokees constituted an independent, foreign, sovereign, nation. The following year, Thompson's dissent became the majority position in worcester v. georgia. (See cherokee indian cases.)

Thompson's conservative attitude toward government and business sometimes put him at odds with both Marshall and Taney. Perhaps none of his contemporaries had more concern for protecting vested rights than did Thompson. He joined Story's charles river bridge dissent (1837), and in his own Wheaton v. Peters (1834) dissent he said that as a matter of "sound reason and abstract morality" the common law provided copyright protection. It was his concern for vested rights alone with his administrative experience that caused Thompson to distinguish between cabinet officers' political and ministerial duties. Only the latter functions were "subject to the control of the law, and the direction of the president," he said in United States ex rel. Stokes et al. v. Kendall (1838). Thompson's conservatism meshed with his adherence to states' responsibilities in interpreting the contract clause. In his view contracts were subject to the existing law of a place, including insolvency laws. Such laws, like the long-standing New York system, were also good for business. These beliefs explain Thompson's opposition to Marshall in ogden v. saunders (1837), and partially explains his craig v. missouri dissent (1830). Thompson's impact on constitutional law was slight, and only a few Whig politicians lamented his death.

Donald M. Roper
(1986)

Bibliography

Dunne, Gerald T. 1969 Smith Thompson. In Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court. Pages 475–492. New York: Chelsea House.