John McLean: Moderate Abolitionist and Supreme Court Politician
Finkelman, Paul, Vanderbilt Law Review
Unlike almost all early Supreme Court Justices, John McLean came from extraordinarily humble origins. He was born in New Jersey in 1785.1 His parents, Fergus and Sophia Blackford McLean, were farmers who moved to Virginia in 1789, Kentucky in 1790, and finally Ohio in 1796. Like many children of the frontier, the future Justice had no formal education for most of his boyhood.2
Finally, at age sixteen, McLean studied classics in a local school. At nineteen, he was an apprentice in the Hamilton County Court of Common Pleas and studied law under Arthur St. Clair, Jr., the son of the former territorial governor. McLean then edited a newspaper in Lebanon, Ohio, practiced law, and worked for the federal land office. In 1812, Ohio gained five new congressional seats; the twenty-eight-year-old McLean won one of these seats and served in Congress until 1816, when, at age thirty-one, he took a seat on the Ohio Supreme Court. He left the court in 1822 when President James Monroe made him Commissioner of the General Land Office. In 1823, Monroe brought him into his cabinet as Postmaster General, and he held that position until 1829, serving three successive Presidents: James Monroe, John Quincy Adams, and Andrew Jackson. Shortly after taking office, President Jackson appointed McLean to the Supreme Court, where he sat from 1829 to 1861. When he died on April 3, 1861, the eve of the Civil War, he was the last surviving member of the administrations of Monroe and Adams, serving as a living link between the founding and the secession crisis. One minister eulogized that his death was a portent of the "dark cloud" that had "been gathering over this nation" and of the "approaching evil" the nation faced.3
When McLean went to the bench in 1829, he was considered a likely presidential candidate for the next election in 1832. 4 Indeed, from 1832 until 1860 he was "in play" in every presidential campaign except 1840. In 1832, the new Anti-Masonic Party offered him the chance to run for President, but he declined. Various groups and parties put forward McLean's name as a presidential candidate in 1836, 1848, 1852, 1856, and 1860. He was not a candidate in 1840, however, because a fellow Ohioan, William Henry Harrison, was the Whig candidate. In 1844, some delegates at the Whig Convention proposed naming him the vice presidential candidate. In 1856, he sought the nomination of three different parties, and in 1860 he received votes at both the Republican Convention and the Constitutional Union Party Convention.
His thirty-two years on the Supreme Court make him one of the twelve longest serving Justices in history.5 At the time of his death, he was the third longest serving Justice in the history of the Court,6 and he is sixth in length of service among all Justices who served before the twentieth century. He wrote about 240 majority opinions and about sixty separate concurring and dissenting opinions.7 Yet he is about as obscure a Justice as there has ever been. Few Justices have worked so hard for such a long period of time, and yet had so little impact on the Court.8
How do we appreciate the "underappreciated" John McLean? It cannot be through his majority opinions - even the handful of majority opinions he wrote in important cases, such as Wheaton v. Peters,9 Briscoe v. Bank of Kentucky,10 The Passenger Cases,11 and Pennsylvania v. Wheeling Bridge Co.,12 are relatively insignificant. These cases are famous for the political, economic, and constitutional issues that brought them to the Court, but not for the jurisprudence or the reasoning of their majority opinions. Rather, McLean's importance comes from three aspects of his career: 1) his unusual political aspirations and activities while serving on the bench; 2) his support for a national commerce power and a flexible approach to economic development that contrasted with the states' rights anti-nationalism of Taney and a majority of the antebellum Court; and 3) his moderate antislavery jurisprudence, which he combined with a defense of northern interests on a Court dominated by Southerners and northern supporters of slavery. …