The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. When the Supreme Court opened its 2010 Term on October 4, the Justices sat with their newest colleague, Elena Kagan. As the 112th Justice, she had been named at age 50 by Pres ident Barack Obama on May 10 to fill the seat vacated by retiring Justice John Paul Stevens. As the first Solicitor General to be elevated to the Court since Justice Thurgood Marshall, for whom she had clerked, this native New Yorker and former dean of Harvard Law School was the first nominee in thirty-eight years to reach the High Court with no experience as a judge. Educated at Princeton University and Harvard Law School, she was associate counsel in the Clinton White House following two years in private practice and was on the short list in 2009 for the seat that became Justice Sonia Sotomayor’s. Four days ofhearings in the Sen ate Committee on the Judiciary preceded a favorable committee vote (13-6) on July 20. After three days ofdebate, the full Senate con firmed the nominee 63-37 on August 5, with the oaths then administered by Chief Justice John Roberts at the Court on the same day. With Justice Kagan’s arrival, the Court was approaching a noteworthy date: the 210th anniversary ofJohn Marshall’s appointment as ChiefJustice in January 1801. Among those who follow the work of the Supreme Court, it has long been textbook po litical science that American elections have constitutional consequences, just as it is true that decisions by the Court interpreting the Constitution and statutes can have electoral consequences. A strikingly clear illustration of the first half of that statement was made plainly evident very earlyin Americannational history: in the election of 1796, the nation’s first truly competitive presidential election. In that sometimes forgotten contest, John Adams, who had served as George Washington’s Vice President, received 71 electoral votes to 68 for Thomas Jefferson, who for a time had been Washington’s Secretary of State. Adams’s vic tory proved to be particularly significant when viewed in the light of another political real ity: the impact oftiming on subsequent events. Withrespectto JohnMarshall andthe Supreme Court, timing seems critical in at least two re spects. First, in August 1798, Justice James Wil son died. Although he was one of Washing ton’s original appointees to the Court, his departure hardly created the first vacancy therein, for in the decade of the 1790s, ju dicial vacancies seemed more the rule than 160 JOURNAL OF SUPREME COURT HISTORY the exception. But his departure did mark the first death of a Justice in harness. To fill Wil son’s place, President Adams offered the seat to John Marshall ofVirginia, who had recently returned to the United States from a diplo matic mission to France. Marshall, whose ju dicial experience at that point was limited to his time as recorder of the Richmond City Hustings Court in 1785-81,’ was reluctant to abandon his lucrative law practice in Rich mond, and he declined. Adams then turned to Washington’s nephew Bushrod Washington, also ofVirginia, who accepted.2 Had Marshall accepted the nomination for Wilson’s seat, it seems arguable, ifnot probable, as subsequent events suggest, that he might never have be come ChiefJustice. That possibility presented itselfonly after a second critical example of timing. In early December 1800, President Adams received word from Chief Justice Oliver Ellsworth— then in France on a diplomatic mission and in poor health3 —that he was resigning as Chief Justice.4 By January 1801, filling this vacancy became urgent. In those pre-Twelfth Amend ment days, the Electoral College had yielded a tie vote between Jefferson and Aaron Burr, which, as the matter developed, would not be resolved by the House ofRepresentatives until February. Adams thus did not know who the next President would be, only that he would not be President after March 4. The electoral situation thus counseled against any delay in replacing Ellsworth. On December 18, the President picked former Chief Justice John Jay for the post, and the lame-duck Federalist-controlled Sen ate confirmed the appointment on December 19.5 However, Jay, who had...