In an earlier Closer Look, we noted that Justice Thomas Todd often takes the title of “most insignificant justice.” He is rivaled, however, by the subject of today’s closer look: Justice Gabriel Duvall. Indeed, a 1936 history of the court proclaimed Duvall the winner (or loser?), and in 1983, two law professors revisited the question. Professor David Currie ruled for Duvall, “praising” him for “an enviable standard of insignificance against which all other Justices must be measured.” Professor (and later Judge) Frank Easterbrook called the contest between Duvall and Thomas Todd “almost a dead heat” between “the Tweedledee and Tweedledum of sloth” – before handing the title to Todd. We’ll let you decide who emerges victorious.
Duvall, a direct descendant of Mareen Duvall, a Huguenot who fled France for Maryland in 1655, was born in December 1752 in Prince George’s County. (Genealogists have determined that both President Barack Obama and Vice President Dick Cheney are distant relatives of Mareen Duvall.) Admitted to the bar in 1778, Duvall spent the first years of the American Revolution as a clerk for the Maryland State Convention (Maryland’s revolutionary convention that created the state government) while serving in the state militia. He also represented enslaved Marylanders suing for their freedom: In 1791, Duvall filed petitions against a slaveholding Jesuit priest on behalf of two individuals. At the same time, Duvall himself owned at least eight enslaved people as of 1783; at one point, Francis Scott Key (who also represented enslaved persons) successfully sued Duvall to free a family held by Duvall.
Duvall resigned from the Executive Council of Maryland in 1786 because he believed a new law expanding the governor’s (and the council’s) powers was “repugnant to the Constitution and Form of Government of this State.” Maryland subsequently named him a delegate to the 1787 Constitutional Convention, although Duvall never attended – Oyez attributes the absence to his wedding, which fell during the proceedings.
Duvall won a seat in the U.S. House in 1794 as a Democratic-Republican, where he met then-House member James Madison. Duvall resigned in March 1796 to become chief judge of the General Court of Maryland, taking the seat that Samuel Chase had held before he joined the Supreme Court. In 1800 Duvall publicly defended Thomas Jefferson as “the Friend of the People” in response to allegations that Jefferson had absconded from Richmond before the British arrived. Duvall served as a Jefferson presidential elector that year. Jefferson returned the favor in 1802, naming Duvall the comptroller of the treasury, the treasury secretary’s legal adviser. Duvall reportedly earned such a “reputation for accuracy and honesty” that both sides of congressional debates trusted his figures.
Madison’s first choice for Chase’s seat was John Quincy Adams, who opted to remain a diplomat in Russia. Madison nominated Duvall on Nov. 15, 1811, the same day he nominated Joseph Story; the arrival of the two Democratic-Republicans flipped the court’s Federalist majority. Duvall took his seat on Nov. 23 at age 58, and he and Story first took the bench together the same day in February 1812 – after which their reputations “diverged widely.”
Unlike Story, by most accounts Duvall did very little. He generally voted with Chief Justice John Marshall and favored a nationalist reading of the Constitution. Currie wrote that Duvall’s entire output on a constitutional case in his 25 years on the court was a single three-word dissent in the Dartmouth College case – “DUVALL, Justice, dissented” – approximately 0.0008 pages per year. Easterbrook’s reply counted 18 opinions across all fields, 15 of them for the court, although he described them as “graceless and plodding, saved only by their brevity.” In fairness, Duvall sat during the era with the lowest rate of separate opinions in the court’s history, at 7%. And not everyone has been so harsh: Prince George’s County court notes that Marshall drew on Duvall’s commercial expertise and assigned him opinions on public finance. Justice Bushrod Washington’s correspondence shows Duvall as strict on procedure – in 1822, he objected to a motion made after three members of the majority had already gone home.
Duvall’s most enduring work likely came in two slavery cases. In Mima Queen and Child v. Hepburn, argued for the petitioners by Francis Scott Key, he dissented alone from Marshall’s opinion excluding hearsay evidence of free ancestry, arguing that because freedom was at issue the customary rules of evidence should yield. Duvall wrote that “the right to freedom is more important than the right of property” and warned that the majority’s rule “cuts up by the root all claims of this kind.” Sixteen years later, in Le Grand v. Darnall, Duvall wrote for a unanimous court that a slave owner’s bequest of property to a person he had enslaved freed that individual by necessary implication. (Easterbrook concluded that these opinions cost Duvall the “most insignificant” title.)
Deafness eventually ended Duvall’s time on the bench. He reportedly held onto his seat to block someone he felt was “too much of a politician” to serve on the court and left only upon learning Roger Taney would be nominated. Duvall resigned in January 1835 as the court’s “first conventional retiree” – that is, the first justice to leave voluntarily after a long career (previous justices had either died on the court or left for another job after a brief tenure). Marshall’s farewell letter noted “the purity of his public life,” although the letter went unpublished until 2006 and the court did not note his departure at all for several weeks.
Duvall died at Marietta, the Duvall family home, in March 1844 at age 91, leaving a law library of 528 volumes. Despite his record on the court, Duvall never personally denounced slavery, and his estate at his death included 36 enslaved people. More than a century later, Prince George’s County inducted him into its Hall of Fame and named a wing of its courthouse for him.