With no cases to decide, after less than a week the justices once again returned home to prepare for the fall circuit. Jay left New York in September and would not return home until late December, this time in a foul humor. Although Boston had been to his liking, he had also been forced to stop at an increasing number of towns, including one in Rhode Island, which had finally ratified the Constitution and joined the Union. Some of the inns were dirty, the food often not to his liking, and his coach forced to travel on less well-repaired roads as the circuit ranged farther afield. Although the spring 1791 journey was improved—Jay took along his wife and eldest son—the chief began to detest circuitriding. The associate justices’ experiences were, if anything, worse, with Iredell complaining that circuitriding had reduced him to a “traveling post boy.”9
Antipathy to circuitriding notwithstanding, with not a single action yet reaching the Supreme Court, circuit courts were the only venues in which the justices could actually adjudicate cases. More importantly, loath to admit it as they were, circuit courts were the only means to bring the full bearing of the new national government to the provinces. “It was, in fact, almost entirely through their contact with the Judges sitting in these Circuit Courts that the people of the country became acquainted with this new institution, the Federal Judiciary.”10 The states, accustomed to doing much as they pleased under the Articles, were reluctant, even blatantly antipathetic, to come to grips with the realities of subordinate authority. Washington, Jay, and other strong nationalists were equally determined that the states be forced to acknowledge the higher sovereignty of the national government. With Congress and the president largely occupied by foreign affairs, finance, and establishing a new capital, the judiciary was the obvious vehicle with which to assert federal authority over local government. As a result, some of the cases that the justices encountered on circuit turned out to be of great significance.
In May 1791, for example, Jay’s circuit court, meeting in Hartford, was presented with an appeal to a Connecticut law that did not allow interest to accrue on debts to British or Tory creditors unless the creditors were available to be paid, in effect forgiving interest on American debt for the entire war. This was to be the first test of Washington’s resolve to ensure that British creditors were treated fairly, and Jay was up to the challenge. The circuit court struck down the Connecticut law on the grounds that there was no provision for withholding interest in the peace treaty between the United States and Great Britain. Since treaties supersede any law that a state might pass, the law was therefore void.11 The court, either by design or coincidence, had chosen an apt case with which to assert federal supremacy. The decision, although repugnant to debtors, was cheered by Federalists. The Hartford Courant observed, “Numerous spectators beheld the corpse [of the law] . . . hoped that it might never rise again in this world to our shame or in the world to come to our confusion.”12
Seemingly lost in the debate over the annulment of the law itself was Jay’s assertion of national supremacy. None of the contemporary accounts mentioned that, for the first time, the newly created federal judiciary had struck down a local law on the grounds of vested sovereignty. Federalists were fortunate that this test came in Connecticut, rather than Virginia or Maryland— or even New York—where such a ruling by a federal circuit court might easily have been ignored and a constitutional crisis thus precipitated.
The next year, Jay’s circuit court, this time sitting in Rhode Island, struck down a state law interfering with the obligation of contract, and in 1793 another Connecticut law was struck down. In those first years of the judiciary, in fact, the circuit courts, which the justices disliked with varying degrees of intensity, were proving to be precisely the sort of vibrant institutions that the Supreme Court itself was not. The problem, in addition to the entropic nature of the circuits and the difficulty in getting there, was that a decision in circuit court lacked the heft to rise to the level of policy or even Constitutional interpretation. While Jay seemed to be making exceptional progress in establishing national authority—there was certainly tacit acceptance, at least in the North, that circuit courts could deal with state statutes on a case-by-case basis—few in any of the states were prepared to yet acknowledge an inherent statutory superiority of the federal judiciary over state law.13 The limits of circuit-court rulings were not lost on the justices.
In any case, these small, local victories did little to obviate growing depression within the Court’s ranks brought on by the dual melancholies of circuitriding and inactivity in the high tribunal. As Chief Justice Rehnquist later remarked, “During the first decade of the new republic, the Supreme Court decided a total of sixty cases—not sixty cases per year, but about six per year, because there was so little business to do.”14 Indeed, after the August 1791 term, the Supreme Court’s fourth, it had yet to hear a single case.
In the absence of legal work, the justices’ semi-annual meetings in these first years were almost entirely devoted to trying to find a way to end circuitriding. When the Court moved to Philadelphia, the new national capital, in 1791, the rigors of the southern circuit were to some degree ameliorated. Jay’s travel burden only increased, however, as the Court was no longer in his home city.
All this became too much for Rutledge. Although he had never attended a Supreme Court session, he nonetheless decided that a man of his stature deserved better than the ragtag band he felt the Court had become. In November 1791, he quit.15 Rutledge’s resignation left President Washington in a quandary. Jefferson’s Republicanism was making great inroads in the South, and South Carolina was the only remaining Federalist bastion in the region. The president was therefore desperate to appoint a man of prestige from that state to take Rutledge’s place. He wrote a joint letter to Edmund Rutledge, John’s brother and the youngest signer of the Declaration of Independence, and Charles Cotesworth Pinckney, imploring either of them to take the job, but both refused, opting to remain in state government.
Washington cast about further, but so marginal was the Court in the nation’s affairs that the only man he could find was not a South Carolinian, but rather fifty-nine-year-old Thomas Johnson of Maryland. And Washington could only cajole the aging Johnson to take the job by assuring him that “the arrangement had been made or would be so agreed upon that you might be wholly exempted from performing this tour of duty [circuitriding] at that time.” In fact, Washington had only persuaded the other justices to agree not to assign the new man to the southern circuit, not to give Johnson a complete pass. Washington felt safe in the finesse, however, since he went on to observe to Johnson that he was certain circuitriding would soon be eliminated entirely. *
By this time, Jay was seriously reconsidering his decision to take the job. With Congress and the president engaged in tumultuous activities, it was deeply frustrating for a man who had been at the center of the political maelstrom to spend more than half his year bouncing along bad roads, living like “a post boy,” while his friends and former colleagues forged a new nation.
In early 1792, the chief justice decided to hedge his bets. While remaining on the Court, he injected himself back into the political mainstream by agreeing to be nominated as a candidate in the upcoming gubernatorial race in New York against George Clinton.16 Jay did not campaign actively, but nonetheless enthusiastically encouraged his supporters. Clinton, as an enemy of the new Constitution, seemed particularly vulnerable, but Jay, alas, had picked an unfortunate moment to enter electoral politics. For a race in which one of the parties was the highest judicial officer in the nation, the gubernatorial election of 1792 was one of the dirtiest in New York’s history, rife with backroom deals, questionable vote-counting, and allegations of fraud flying back and forth. Jay remained largely above the fray—he was on circuit during the actual voting and during the most acrimonious period of vote-counting—but even vague association with such a seamy affair did little to enhance his reputation or that of the Court. Also, that a sitting chief justice would even consid
er seeking other office was an unfortunate testament to the esteem of the nation’s highest tribunal. Most ironically, when he lost to Clinton, he was then forced to remain in a job whose standing he had weakened by the decision to seek state office.
In April 1792, Jay was victim of politicking of another sort. Although no written record survives, Justice Iredell must have made known his complaints about the chief justice’s refusal to rotate circuits. On April 18, a law was enacted that circuit assignments “shall be made in such a manner that no judge, unless by his own consent, shall have assigned to him any circuit which he hath already attended, until the same hath been afterwards attended by every other of the said judges.”17 There is also no record of Jay’s response, but he could not have been pleased that Congress and the president had seen fit to overrule his authority as head of the Court by enacting into law that which he had refused in discussion. He was, at least, sufficiently fortunate—or sufficiently obstinate—to be assigned Virginia and the middle circuit, rather than the South.
There was more bad news for the judiciary. In March 1792, Congress had passed the Invalid Pension Act, under which circuit courts were charged with evaluating petitions from disabled war veterans to determine whether the petition was proper and, if so, what amount of pension the petitioner should receive. The courts’ ruling would then be evaluated by the secretary of war, and then, if rejected, by Congress. Worthy though the new law may have been, the justices seemed to have been reduced to clerks for the secretary of war and Congress. Jay, as well as all five associates, also thought the law violated the Constitution by infringing on the judiciary’s independence by subjecting its decisions to congressional and executive oversight. (They were also none too thrilled at the prospect of sitting an extra five days each term to hear the pensioners’ claims.) They made their feelings clear in numerous writings, but rather than force a confrontation over the issue, agreed to perform the task.18
With the pension issue shunted to the side, the justices met for the August 1792 term, to find that a case had finally come before the Court—but it had arisen out of that very Invalid Pension Act. A pension request by one William Hayburn of Pennsylvania had been denied in circuit court, and Attorney General Edmund Randolph, appearing as a private citizen, insisted that the Supreme Court issue a writ of mandamus ordering the circuit court to deliver the pension. Randolph noted that he was appearing “without an application from any particular person, but with a view to procure the execution of an act of congress, particularly interesting to a meritorious and unfortunate class of citizens.”19
The Court refused to entertain Randolph’s motion in what was, in effect, a class action. Randolph shifted gears, and presented the specifics of Hayburn’s case. “He entered into the merits of the case, upon the act of congress, and the refusal of the judges to carry it into effect.” The Court might not be able to eliminate being postboys, but the justices decided to dig in their heels on being clerks as well. The justices took no action on Hayburn’s application, holding it “under advisement, until the next term,” but expressed doubts that they would ever be in the position to act, as the judiciary’s duties delineated in the Invalid Pension Act were in violation of the Constitution. Jay had written, on circuit in New York, “That by the constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.”20
Hayburn presented a memorial to Congress asking for relief, but the House also chose to take the matter under advisement. Hayburn’s case was never decided in court—Congress ultimately did change the Invalid Pension law to remove circuit courts from the evaluation process—but the Court had succeeded in establishing its independence from extrajudicial tasks.
As to their principal bête noire, rotating the circuits had not mollified the justices (except perhaps Iredell), and in that same session they finally sent formal letters to Washington and the Congress denouncing a practice than left them “existing in exile from their families.” Neither Washington nor Congress could afford the unpleasant prospect of full-scale revolt and possibly even mass resignation among the justices. Still, from both a fiscal and a political perspective, expanding the judiciary to provide a separate circuit court system was not feasible. Johnson at this point realized that, the president’s assurances notwithstanding, he would be required to ride circuit after all. He resigned, effective the beginning of the next term, citing his antipathy to the loathsome practice as the reason.21
A compromise of sorts was reached the next year, when, on March 2, 1793, Congress passed and Washington signed amendments to the Judiciary Act of 1789. The very first provision of the new law stated: “The attendance of only one of the justices of the supreme court, at the several circuit courts of the United States, to be hereafter held, shall be sufficient, any law requiring two of the said justices notwithstanding.”22 The provision was greeted with relief by the justices, but hardly elation. One circuit per year was more than enough, and justices would remain in the position of hearing cases on the high bench that they had already adjudicated on circuit.
As it turned out, halving the circuitriding requirement was the second piece of good news the justices received in early 1793. During the February term, which convened as the Judiciary Act of 1793 worked its way through Congress, the Court finally heard a case of significant importance. Chisholm v. Georgia was an amalgam of debt repayment and state sovereignty, and therefore allowed the Jay court its first opportunity to cement Federalist doctrine on a national scale. As with most cases in which great law is made, the particulars were straightforward and uncomplicated. During the war, a South Carolina Tory, Captain Robert Farquhar, had sold £64,000 worth of clothing and dry goods on credit to the State of Georgia. Farquhar had since died and his executor, Alexander Chisholm, also from South Carolina, had been rebuffed in his attempts to collect the debt. Georgia had announced haughtily that it had no intention of paying off a British sympathizer, no matter what those Federalists in Philadelphia said. Chisholm filed suit in circuit court in Georgia, asking £100,000—principal plus interest and damages.23 Georgia declined to appear, refusing to acknowledge the court’s right to render judgment. As a sovereign state in its own right, Georgia argued, it could not be sued without its consent, and therefore Chisholm’s argument was moot. Justice Iredell, as circuit court judge, agreed with Georgia, citing both constitutional grounds and a failure of the Judiciary Act of 1789 to authorize circuit courts to hear cases where a state was party to a lawsuit.* Chisholm died, but his executors then appealed the ruling to the Supreme Court, placing the issue squarely on constitutional grounds.
In its claim of equal sovereignty, Georgia had thus precipitated not simply the first real test of the national court system, but a test of the limits of constitutional power. Article III, Section 2, clearly stated: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . to Controversies . . . between a State and Citizens of another State.” If the Court failed to enforce this provision, the Constitution would be weakened and the entire edifice that Washington and the Federalists were so carefully constructing might well come tumbling down. Underscoring the importance of the issue, Chisholm’s attorney, hired by the executors, was again none other than Attorney General Edmund Randolph, appearing, as he had in Hayburn, not in his official capacity but as a private citizen.
The case was argued on February 5, 1793. Randolph pointed out that, since Article III made no distinction between whether a state could be a plaintiff or defendant, Georgia’s argument was spurious. Randolph’s remarks went unchallenged, since no one in the courtroom chose to speak for the defendant.
/> Georgia’s absence notwithstanding, the case aroused enormous interest, the first time the Supreme Court had taken center stage since its opening session three years before. Before a packed courtroom on February 18, the Court convened to render its verdict. Justices followed the English precedent and delivered opinions seriatim—one at a time—in reverse order of seniority. (The practice of producing an “opinion of the court” would not be introduced until 1801, by Chief Justice Marshall.) First up, therefore, was Justice Iredell, who favored the defendant, arguing that the Constitution never intended to grant either Congress or the courts such sweeping powers over the states, whose continued sovereignty it had taken such pains to ensure. Therefore, he concluded, Georgia could not be sued in federal court without its consent.24
When Iredell was finished, the remaining associates read their opinions, each of them disagreeing, ruling for the plaintiff. Justices Cushing and Blair rendered short, concise opinions, relying almost entirely on the wording of Article III. That left Wilson and Jay, one the chief justice and the other the man passed over for the job. Wilson began:
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