Jump to Content Jump to Main Navigation
The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

T, Thompson, Smith

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Thompson, Smith

(b. Amenia, N.Y., 17 Jan. 1768; d. Poughkeepsie, N.Y., 19 Dec. 1843; (p. 1019) interred Poughkeepsie Rural Cemetery), associate justice, 1823–1843. Thompson was a resident of Dutchess County for most of his life. A 1788 graduate of the College of New Jersey (Princeton), he served his legal apprenticeship with Gilbert Livingston and James Kent. His political views coincided with those of the Antifederalist Livingston, but he received most of his legal education from the conservative Kent. In 1795, Thompson replaced Kent as Livingston’s partner and married the latter’s daughter, Elisha. Livingston was a relatively poor relation of the “manor” Livingstons but enjoyed sufficient political clout to enable Thompson’s appointment to the state supreme court (after a term in the assembly) in 1802. He remained there until 1818, serving as chief justice from 1814 to 1818. Thompson was the candidate of Martin Van Buren’s Bucktail faction when President James Monroe sought a New Yorker for secretary of the navy in 1818. Monroe apparently was comfortable with Thompson’s political views, and when Justice Brockholst *Livingston died in March 1823, Monroe literally refused to appoint anyone else.

Thompson’s twenty years on the Court mark him as a transitional figure between the Marshall and Taney eras. More inclined to express his differences with his brethren than Livingston, Thompson’s twenty years on the Court mark him as a transitional figure between the Marshall and Taney eras. More inclined to express his differences with his brethren than Livingston, Thompson was one of a 4-to-3 majority that forced Chief Justice John *Marshall into his sole constitutional dissent in *Ogden v. Saunders (1827). The case involved a New York insolvency law, which Marshall felt violated the Constitution’s *Contract Clause, but which Thompson believed was not only part of any contract negotiated but was essential for any commercial society.

Thompson’s major role was in interpreting the Commerce Clause (see commerce power). Consistent with his position taken on the New York court, and subsequently taken on the Supreme Court, there is no doubt that Thompson would have dissented in *Gibbons v. Ogden (1824), had he sat on the case. Thompson believed that states could regulate commerce unless such acts directly conflicted with congressional laws. For example, in his concurring opinion in *New York v. Miln (1837), Thompson agreed with the result but refused to distinguish a New York tax on immigrants as a valid exercise of *police powers. Thompson’s concurrent position contrasted with the exclusive theory of Marshall and Joseph *Story, and later James Moore *Wayne and John *McLean.

Thompson’s position on *Native Americans also reflected his New York background, as his dissent in Cherokee Nation v. Georgia (1831), relied upon his former mentor and colleague, James Kent (see cherokee cases). Arguably Thompson’s finest opinion, his Cherokee dissent set forth the concept that Indian tribes are separate sovereigns despite their conquered position.

Donald M. Roper, Mr. Justice Thompson and the Constitution (1987).

Donald M. Roper