A Forgotten First: Everett J. Waring, First Black Supreme Court Advocate, and the Case of Jones v. United States

Abstract

In reflecting upon her historic confirma­ tion as the first Black woman on the nation’s highest court, Justice Ketanji Brown Jackson acknowledged that she stood “on the shoul­ ders” of many “true pathbreakers.”1 While Justice Jackson undoubtedly had in mind Black Supreme Court advocates turned mem­ bers of the federal judiciary like Constance Baker Motley (first Black female federal judge) and Thurgood Marshall, one cannot ignore the rich legacy left by nineteenth cen­ tury Black lawyers who appeared before the Court. While the history of lawyers generally has been too long regarded as “a White man’s history”2 and Black lawyers’ “names and contributions remained unknown,”3 the history of Black Supreme Court advocates has been particularly neglected.4 Occasional mentions are made of pioneers like John Swett Rock (who in 1865 became the first Black lawyer admitted to practice before the U.S. Supreme Court) or Emmanuel M. Hewlett and Cornelius J. Jones (early Black Supreme Court advocates who on December 13, 1895, argued Gibson v. Mississippi and Smith v. Mississippi, respectively). But for too long, the question of “who was the first Black lawyer to ague before the United States Supreme Court?” has gone unanswered—or worse, incorrectly answered.5 This article seeks to rectify historical oversight and give due credit to this forgotten first: Everett J. Waring of Maryland, who in 1890 argued the case of Jones v. United States. The case he brought transcended garden variety criminal defense and the mis­ treatment of Black workers to raise important questions about sovereignty and jurisdiction in the early days of U.S. imperialism that still resonate today. But in order to appreciate Waring’s achievement, and place it in histor­ ical perspective, we must first examine the complicated circumstances that launched his