Thomas Todd (January 23, 1765 – February 7, 1826) was an American attorney and Associate Justice of the U.S. Supreme Court. Raised in the Colony of Virginia, he studied law and later participated in the founding of Kentucky, where he served as a clerk, judge, and justice. He was married twice and had a total of eight children. Todd joined the U.S. Supreme Court in 1807 and his handful of legal opinions there mostly concerned land claims.
Todd was born in King and Queen County, Virginia, on January 23, 1765. He was the youngest of five children. Both of his parents died when he was young. He was raised Presbyterian. At the age of sixteen, Todd served in the American Revolutionary War for six months and then returned home. He attended Liberty Hall Academy in Lexington, Virginia, which is now Washington and Lee University, and graduated in 1783.
Todd then became a tutor at Liberty Hall Academy in exchange for room and board and instruction in the law. Todd studied surveying before moving to Kentucky County (then part of Virginia) in 1783 when his first cousin, Harry Innes, was appointed to the Kentucky district of the Virginia Supreme Court. Todd read law to gain admission to the Kentucky bar in 1786, but he gained positions of influence by becoming a recorder.
Todd served as the clerk at five constitutional conventions between 1784 and 1792 where Kentucky was seeking statehood. He served as secretary to the Kentucky State Legislature when Kentucky was admitted to the Union in 1792. When the Kentucky Court of Appeals, the State's highest court, was created in 1789, Todd became its chief clerk. He also maintained a private practice in Danville, Kentucky from 1788 until 1801, when Todd was appointed a Justice of the Kentucky Court of Appeals. In 1806 he was elevated to Chief Justice.
Todd married Elizabeth Harris in 1788 and they were the parents of five children: Elizabeth (Mrs. John Hanna), Ann Maria (Mrs. Edmund Starling), Harry Innes, Charles Stewart, and John Harris. On March 29, 1812, Todd married Lucy Payne Washington, the youngest sister of Dolley Madison and the widow of Major George Steptoe Washington, who was a nephew of President George Washington. It is believed to be the first wedding held in the White House. Their three children were William J. Todd, Madisonia Todd, and James Madison Todd.
Todd was nominated to the U.S. Supreme Court by President Thomas Jefferson on February 28, 1807, after Congress raised the number of seats on the court to seven by 2 Stat. 420, 421. He was confirmed by the United States Senate on March 2, 1807, and received his commission the following day. He is one of 19 Presbyterians to have served on the Court.
Todd served as a Supreme Court Justice until his death in Frankfort, Kentucky on February 7, 1826 at the age of 61. Todd was buried in the Innes family cemetery but later exhumed and reinterred in the State Cemetery at Frankfort.
Todd served under Chief Justice John Marshall. Politically, Todd was a Jeffersonian. Although they had different political beliefs, Todd adopted Marshall's views on judicial interpretation, but did not write a single constitutional opinion. He was labelled the most insignificant U.S. Supreme Court justice by Frank H. Easterbrook in The Most Insignificant Justice: Further Evidence, 50 U. Chi. L. Rev. 481 (1983). Todd wrote only fourteen opinions—eleven majority, two concurring and one dissenting. Ten of his eleven majority opinions involved disputed land and survey claims.
Todd's first reported opinion was a dissent to the opinion of Chief Justice Marshall in Finley v. Lynn. He concurred in all other opinions written by the Chief Justice. One of the more interesting of these cases was Preston v. Browder, where Todd upheld the right of North Carolina to make land claim restrictions on filings that were made in Indian territory and violated the Treaty of the Long Island of Holston made by the state on July 20, 1777. His opinion in Watts v. Lindsey's Heirs et al., explained confusing and complicated land title problems which plagued early settlers of Kentucky.
Todd's only Court opinion which did not involve land law was his last. In Riggs v. Taylor, the Justice made the important procedural ruling, now taken for granted, that if a party intends to use an original document as evidence, then the original must be produced. But if the original is in the possession of the other party to the suit, who refuses to produce it, or if the original is lost or destroyed, then secondary evidence will be admitted.
Todd's remains are reinterred at historic Frankfort Cemetery, overlooking the Kentucky River and the capitol of Kentucky.
Upon his death, Justice Todd was vested with substantial real property, particularly in Frankfort, Kentucky. He was a charter member of the Kentucky River Company, the first business formed to promote Kentucky waterway navigation. The inventory of his estate revealed he was a shareholder of the Kentucky Turnpike, (the first publicly improved highway west of the Alleghenies), and the Frankfort toll bridge, crossing the Kentucky River. In addition to his home, he owned more than 7,200 acres of land throughout the state and another twenty or so pieces in Frankfort. After his children were provided for, as he put it, in "their full proportion", the remainder of his estate valued at more than $70,000—a large sum at the time.