When historian Donald Roper told people he was writing a biography of Smith Thompson, the consistent reply, even from constitutional scholars, was “who is Smith Thompson?” Roper had a partial answer, albeit one borrowed from Justice Oliver Wendell Holmes, Jr.: while Chief Justice John Marshall “was great because he was there,” Thompson “was there but was not great.” (Holmes had delivered a famously lukewarm tribute to Marshall.) Thompson, as Roper noted, sat on the same court during those same years, resulting in what a different historian rather unenthusiastically described as a “diligent and unspectacular but above-average performance.”
Thompson was born in Dutchess County, New York, in January 1768. His father reportedly accumulated thousands of acres, put money into a lead mine, and bought up confiscated loyalist property, building lots in the new capital. Thompson’s father also sat in New York’s 1788 ratifying convention, as did his uncle, leading Antifederalist Melancton Smith. Thompson graduated from the College of New Jersey (now Princeton University) in 1788, taught briefly, and clerked in the Poughkeepsie office of Gilbert Livingston and James Kent. Kent, later an influential legal authority of the era, was not a fan of Thompson. Decades later, he described him as a clerk who was “a plain, modest, humble, ignorant young man with narrow views and anti-federal politics. His mind did not expand and his principles became liberal very slowly.” (Kent’s resentments may have been influenced by Thompson taking his place as Livingston’s partner in 1793 and then marrying Livingston’s daughter the next year.)
Despite his supposed modesty, humility, and ignorance, Thompson won a state assembly seat in 1800, sat in the 1801 state constitutional convention, turned down an appointment as district attorney, and in 1802 joined the New York Supreme Court. He declined the position of mayor of New York in 1807, apparently preferring the security of life tenure, succeeded Kent as chief justice in 1814, and over 16 years wrote roughly 250 opinions. One, In re Waldron, kept a young girl with her maternal grandfather rather than her father because the court should “principally [] be directed” by “the benefit and welfare of the infant.” (The case was an early instance of “state courts’ overriding concern [in] the best interests of the children.”)
President James Monroe chose Thompson as his secretary of the Navy in 1818, apparently with no other candidate in mind. Monroe then gave him a recess appointment to the Supreme Court in September 1823, which Thompson accepted only after concluding that his 1824 presidential hopes were for naught. Confirmed that December, he did not take his seat until Feb. 10, 1824, due to his daughter’s death – one day after the court finished hearing the landmark case of Gibbons v. Ogden, which held the federal government has the authority to regulate interstate commerce under the commerce clause. While on the court in 1828, Thompson ran for governor of New York and lost what one account called a “caustic campaign.” He was also close to future President Martin Van Buren, whose fourth son was named after Thompson, as Smith Thompson Van Buren.
On the court, Thompson’s states’ rights convictions regularly left him on the other side of Marshall, and he was, in Roper’s words, “unwilling to suffer in silent disagreement.” His commerce views were developed early – on the New York court in Livingston v. Van Ingen, Thompson wrote that sovereign powers not delegated to the federal government “are retained by the states,” and in 1837’s New York v. Miln he agreed that a state can legislate on subjects within the commerce powers so long as no act of Congress stands in the way. In Kendall v. United States, his majority opinion held that a court could order an executive officer to perform his duty – at the attorney general’s request, he cut a passage rejecting the Jacksonian notion that a president may act on his own reading of the Constitution.
Perhaps his most admired work came in an 1831 dissent in Cherokee Nation v. Georgia, where Thompson argued that the Cherokee were an independent sovereign nation entitled to be heard (“despite their weakened status”), a view the court agreed with the following year in Worcester v. Georgia. Riding circuit in 1839, Thompson ruled that American courts lacked power over the Amistad murder and mutiny charges, which arose on a Spanish vessel within Spanish waters, and he later joined Justice Joseph Story’s 1841 opinion freeing the Amistad’s captives.
Thompson died at age 75 in Poughkeepsie in December 1843. Filling his seat took President John Tyler six nominations and 437 days before Samuel Nelson was confirmed in February 1845. Thompson held a high state or federal office for more than 40 consecutive years, served as a “transitional character” between the Marshall and Chief Justice Roger Taney courts, and may have been the best-credentialed justice to join the court before the Civil War. The Navy named a destroyer for him in 1919.
