How’d you like to be known as the most insignificant [insert your profession here]?
Thomas Todd has been repeatedly labeled “the most insignificant justice,” or – more kindly – a justice who “left a light imprint on the Supreme Court’s history.” We’ll let you decide if the title is appropriate for President Thomas Jefferson’s third appointee to the court.
Todd’s early life was shaped by hardship. Born in 1765 in Virginia, he lost his father before turning two and became an orphan at 11 when his mother died. A family friend ensured he received the classical education his mother had desired for him, but apparently “wasted the rest of Todd’s inheritance.” At 16, Todd enlisted in the Continental Army as a substitute for another draftee; six months of service later, he returned to Liberty Hall (now Washington and Lee University), graduating in 1783.
After graduating, Todd came under the wing of Harry Innes, a cousin to his mother and a Virginia attorney, clerking for Innes and tutoring his daughters in exchange for room and board. In 1784, Innes relocated the household across the Appalachians to present-day Kentucky, and Todd followed. He passed the bar in 1788, married Elizabeth Harris the same year, and opened a practice specializing in land and title disputes (a specialty well-suited to the then-western-expanding United States).
Kentucky achieved statehood in 1792, and Todd penned the first draft of the new state’s constitution before becoming secretary to its inaugural legislature. By 1801 he had joined the Kentucky Court of Appeals (then the state’s highest court) and by 1806 had risen to its chief justice. Congress then added a seventh federal judicial district and a seventh seat to the Supreme Court. Jefferson asked congressional representatives from the new district whom they would recommend, and they named Todd nearly unanimously. The Senate confirmed him by voice vote in March 1807, and Todd took the judicial oath in early May, becoming the first justice from west of the Appalachian Mountains.
Context matters considerably when evaluating Todd’s sparse record on the court. Reaching Washington from his home in Frankfort, Kentucky, required traveling more than 500 miles over roads that were frequently impassable during winter. The Marshall Court was also far from an equal distributor of opinions: Between 1816 and 1823, Chief Justice John Marshall wrote 124 of the court’s 302 opinions – nearly all of the decisions dealing with constitutional issues – while Justices Joseph Story and William Johnson wrote 113 between them, leaving the remaining four justices just 65. When illness kept Todd from the 1823-24 term, Story wrote to tell him his colleagues had wanted his input on multiple occasions, and that several Kentucky land cases had been held over solely because of his absence.
Of the roughly 600 opinions issued during Todd’s tenure from 1807 to 1826, he authored just 14 (11 majority, two concurring, and one dissenting), 10 of which involved land or survey disputes, with his lone non-land opinion being 1824’s Riggs v. Tayloe establishing that original documents must be produced as evidence when available (it’s actually kind of an interesting case).
But let’s return to Todd in the eyes of history – and where his rather poor jurisprudential reputation comes from. In what some might label a bit of a hit job, two separate pieces appeared in the same 1983 issue of the University of Chicago Law Review calling Todd “insignificant.” One professor, working from a “Pages Per Year” metric (applied only to constitutional opinions), “found Todd’s ‘unblemished muteness’ hardest to dismiss, noting he had ‘the longest sustained zero PPY of any Justice’ without having written anything of significance on circuit.” Another went further, deliberately expanding the survey beyond constitutional law to examine every opinion written in every area through Chief Justice Roger Taney’s last term. Using “opinions per opportunity” to adjust for earlier courts’ smaller dockets, Todd’s score came out to 0.022 – roughly one opinion authored per 46 opportunities that came before him (this included cases disposed of by signed opinions, cases disposed of “By the Court,” and any other “opportunities” he would have had to record his views). “The winner by default—in what other way can one win this kind of contest?—is Thomas Todd. Long may he reign,” wrote the author, then-professor (and now 7th Circuit judge) Frank Easterbrook.
Todd died in February 1826, in Frankfort, Kentucky, at 61, survived by eight children and a substantial estate. In his review, White did offer a few counterpoints to the “insignificant” verdict: the characterization, he argued, rests largely on 1) the scarce surviving records and 2) a lack of appreciation for the early Marshall court’s differences, given its circuit riding, Marshall’s near-monopoly on constitutional opinions, and the importance of the land disputes that Todd resolved. So there you go: although Todd will likely never be considered a top-tier justice, his reputation as the court’s most insignificant one may prove a bit overstated (here’s looking at you, Gabriel Duvall).
