Constitution Daily

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On this day, the first African American sworn in as Supreme Court lawyer

February 1, 2019 by Sheldon Gilbert

 

On February 1, 1865—the same day President Abraham Lincoln signed a joint congressional resolution sending the Thirteenth Amendment abolishing slavery to the states for ratification—another historic moment took place in the Old Supreme Court Chamber located in the U.S. Capitol: John Rock became the first African American Supreme Court lawyer.

John Rock was born in the free state of New Jersey in 1825—50 years after the American founding began with the first Revolutionary War shots fired in Lexington and Concord—and died in Massachusetts in 1866, just months after Congress passed the Fourteenth Amendment, one of the three Reconstruction-era constitutional amendments that so changed the Constitution, the period has come to be known as “America’s Second Founding.”

In his 41 years of life, John Rock defied the odds again and again. In his first occupation as a teacher, which he began at age 19, historian Clarence G. Contee wrote in the Supreme Court Historical Society Yearbook that Rock “worked almost to exhaustion” while teaching eight hours a day while independently studying medicine for another eight hours a day.

After being refused admission to medical school because of his race, Rock became a dentist and opened a successful practice in Philadelphia, where he met his wife, Catherine Bowers, a member of a prominent African American family in Philadelphia. Rock didn’t abandon his goal to become a doctor, and in 1852  graduated from the newly-opened Eclectic Medical College of Pennsylvania, becoming “one of the first blacks to receive a medical degree from a regular medical school,” according to Contee.

After becoming a doctor, Rock moved to the African American community of Beacon Hill in Boston, Massachusetts to practice medicine, where his practice “offered free services to fugitive slaves.” He also became very active as an abolitionist speaker during the same period. In a recent podcast about John Rock’s life, historian Christopher Brooks, an expert on Rock, said that Rock “was giving so many speeches I lost count… I kind of asked myself when the man slept.” Over the next few years, Rock served as a delegate to the National Colored Convention in 1855, lobbied for equal rights before state and local legislatures, spoke alongside famed abolitionists like William Lloyd Garrison, and wrote abolitionist tracts for publications like Frederick Douglass’s North Star—all while practicing medicine and dentistry.

But after a few short years in Boston, John Rock became gravely ill, and by 1858, determined that his best hope for treatment would be to travel to France for surgery. In order to travel to France, Rock needed a passport. But by 1858, the Secretary of State had taken the position that “passports are not issued to persons of African extraction,” citing the U.S. Supreme Court’s 1857 Dred Scott v. Sanford decision.

Dred Scott was an enslaved person who, along with his wife Harriet Scott, sued for his freedom in Missouri state court, invoking the common “once free, always free” legal theory. Although many similar freedom suits had prevailed in the past, Scott lost his claim in the Missouri Supreme Court, and so Scott sued again for his freedom, this time in federal court. Scott said that because he was a citizen of Missouri, and he was suing for his freedom from a New York citizen—John Sandford—Scott could bring the claim in federal court because Article III, § 2 of the Constitution allows Congress to open the doors of federal courts to hear claims involving citizens of different states.

in 1857 the Court ruled 7-2 against Scott, claiming that no person of African ancestry could ever be an American or state citizen, and in one of the most infamous sentence in any U.S. Supreme Court opinion, Chief Justice Roger Taney wrote that black Americans “had no rights which the white man was bound to respect.” Because Scott was not a citizen, the Court said, federal courts had no jurisdiction to hear his freedom suit.

After the Secretary of State refused Rock a passport because of his race, Rock secured a passport from the state of Massachusetts to travel to France for treatment. Though his health seemed to improve, by the time he returned to Boston, he was too ill to continue working as a doctor. Perhaps galvanized by the Dred Scott decision’s immediate impact on his own life, not to mention millions of other African Americans, Rock resolved to change his career yet again: after serving as a teacher, a dentist, and a doctor, Rock decided to become a lawyer.

In 1861, Rock was admitted to practice law in Massachusetts, making him one of a handful of African American lawyers in the country. And almost immediately after his admission, he wrote to his friend, Senator Charles Sumner, saying he hoped to be admitted as a U.S. Supreme Court lawyer as soon as possible. Sumner doesn’t appear to have responded, according to historian Brooks, and shortly after, the Civil War broke out. During the War, Rock helped recruit volunteers for the famous 54th Regiment of Massachusetts, the first official African American regiment—popularized by the 1989 Academy Award-winning film Glory. Rock also served as justice of the peace and continued to practice law.

But Rock did not give up on becoming a Supreme Court lawyer—a prospect that likely appealed to Rock , according to Brooks, in part because Rock believed he would be needed to represent other African Americans before the High Court, and in part because Rock wished to practice law before the very Justices who, in Dred Scott, ruled that because of his race he could not appear before that Court as a litigant. In 1864, Rock wrote to Sumner again—and again—asking the Senator to support his motion to become a Supreme Court lawyer. Rock understood that his admission to the Court was unlikely while the Dred Scott opinion’s author, Roger Taney, remained on the bench, and Rock complained that “the old man [Taney] lives out of spite.”

When Taney died in October 1864, he was replaced as Chief Justice by Salmon Chase, an abolitionist appointed by President Abraham Lincoln. Rock renewed his request to Sumner for a “favour” on his “behalf” to ask the Court to admit him as a lawyer. According to Brooks, Sumner wrote to Chief Justice Chase on Rock’s behalf, calling him an “estimable lawyer” who is “daily recommended by [then Massachusetts] Governor Andrew and others.”

On January 15, 1865, Chief Justice Chase raised the possibility of Rock’s admission in a private meeting with the other Justices—including four Justices who had sided with Taney and the majority in the Dred Scott decision, James Wayne, John Catron, Samuel Nelson, and Robert Grier. Chase recorded in his notes that he and other Justices argued that there was “no disqualification [for bar membership] on the ground of color,” and after one of the Justices suggested Rock may not qualify to become a lawyer because he was not a citizen, Chase said he would have that issue argued in Court if it were raised. The unnamed Justice appears to have backed down after that, because Chase recorded in this notes that “we adjourned [sic] with the understanding that colored men qualified could be admitted [sic] without regard to complexion—progress!”

Just two weeks later, on February 1, 1865, John Rock appeared before the Justices—but only after being arrested on his way to the Court for not having papers on him proving he was not a slave—for Senator Sumner to move his admission. Sumner recorded in his papers that he asked the Court to “move that [John S. Rock, Esq.] be admitted as a Counsellor of this Court,” and Chief Justice Chase “bowed, and said: Let him come forward and take the oath.”

Professor Brooks notes that Rock’s admission made headlines “at home and abroad,” with the Boston Journal reporting that “The Slave Power, which received its constitutional death blow yesterday in Congress, writhes on account of the admission of a colored lawyer, John S. Rock, of Boston, as a member of the bar of the Supreme Court of the United States. The rage depicted in the countenances of some of the old Hunkers present at this invasion of their citadel beggars description.” The Vermont Journal  reported that “And thus a colored gentleman was admitted to the bar of that haughty tribunal, hitherto the citadel of slavery, where it was once officially declared that a negro has no rights under the Constitution. Mr. Rock is, in that court, on equality with Reverdy Johnson, or Thomas Ewing, or any other member of that bar.” And perhaps most memorably, Contee writes, a reporter for the New York Tribune who was in attendance said of the occasion,

“By Jupiter, the sight was grand… [After Sumner moved Rock’s admission], The grave to bury Dred Scott decision was in that one sentence dug; and it yawned there, wide open, under the very eyes of some of the Judges who had participated in the judicial crime against Democracy and humanity. The assenting nod of the great head of the Chief Justice tumbled in course and filled up the pit, and the black counsellor of the Supreme Court got on to it and stamped it down and smoothed the earth to his walk to the rolls of the Court.”

Still, other newspapers—like Ohio’s Jeffersonian Democrat—openly ridiculed Rock’s admission, claiming that a lawyer at the Court who would have been admitted after Rock “rushed for the door” rather than join the Supreme Court Bar because the Court had admitted Rock. And despite the New York Tribune’s optimistic rhetoric that Rock’s admission “buried” Dred Scott, much work remained to undo the ruling. On June 18, 1866, Congress took an important step toward burying Dred Scott when it passed the Fourteenth Amendment, which explicitly rejected the Dred Scott citizenship decision in its first sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Rock passed away just a few months later, in December 1866, before the states could ratify the Fourteenth Amendment in 1868, and without ever having a chance to argue himself before the U.S. Supreme Court. The first African American lawyer would to argue before the Court was Samuel Lowery, a former slave from Alabama, who appeared before the Court in 1880—fifteen years after Rock became America’s first African American Supreme Court lawyer.

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The author wishes to express a special thanks to the late Professor Clarence G. Contee for his groundbreaking historical research on John Rock; to Professor Contee's daughter, Cheryl Contee, for her insights on John Rock and her father's research; and to Professor Christopher Brooks, who the author interviewed at length about John Rock. The author's interviews with Brooks, Contee, and other scholars of John Rock and birthright citizenship are included in a podcast, “Before the 14th: John Rock and the Birth of Birthright Citizenship,” available here through the Institute for Justice. 

 

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