The hardships of circuit-riding were so great, in fact, that they drove many a Justice to early resignation or even early death. Justice Iredell died at the age of forty-eight, worn-out after eight years of riding the Southern Circuit. Justice Thomas Johnson resigned in 1793 after a mere six months on the bench. “I cannot resolve,” Justice Johnson wrote to President Washington, “to spend six Months in the Year of the few I may have left [away] from my Family, on Roads at Taverns chiefly and often in Situations where the most moderate Desires are disappointed.”8
Nor were these hardships the only problems with circuit-riding. Indeed, many of the early Justices believed that the circuit system was unconstitutional. For one thing, it presented the unseemly prospect that a Supreme Court Justice might hear an appeal from a judgment that he himself had rendered as a circuit justice. Even if a Justice were to recuse himself from a case he had decided below, the remaining Justices might be disinclined to offend their absent colleague by reversing his ruling. In addition, many thought that, by assigning the Justices to the separate posts of circuit judges, Congress had usurped the President’s exclusive power to appoint federal judges.
AND SO IT SHOULD COME as no surprise that the Justices unanimously and vigorously opposed circuit-riding from the start. The early Justices were seasoned politicians, and, with the help of George Washington and others, they campaigned vigorously throughout the 1790s to have Congress abolish circuit-riding. But it was not until the Judiciary Act of 1801, when John Adams was President, that Congress finally acted. The 1801 act eliminated the Justices’ circuit-riding duties and established six new circuit courts to be overseen by sixteen new judges.
This was not a politically neutral reform, and the uproar it generated brought circuit-riding back in less than a year. If you think the contemporary battles over judicial appointments are contentious, consider this story.
Soon after the 1801 act was passed, in the final days of President John Adams’s administration, Thomas Jefferson’s Republicans denounced it as a Federalist scheme to pack the new circuit courts with Federalist appointees. And, indeed, within just two short weeks, the Federalist-dominated Senate confirmed President Adams’s nominations for all sixteen of the new circuit judges. These were some of the so-called “midnight judges” of Marbury v. Madison fame. But with the inauguration of Thomas Jefferson and the new Republican Congress, the Republicans took control, and soon repealed the 1801 act. The Repeal Act eliminated the sixteen new circuit judgeships. And, as if to chastise the Federalists then sitting on the Supreme Court, it restored the Justices’ loathsome circuit-riding duties!
In one stroke, the Republicans had dismissed sixteen sitting federal judges, all of them appointed by the opposing party. Can you imagine the scandal? I don’t think anything in modern history even comes close. But the Republicans’ next move was even more brazen. To prevent the Supreme Court from striking down the Repeal Act as unconstitutional, Congress simply canceled the Court’s next Term!
By the time the Court did confront a constitutional challenge to the Repeal Act, brought by a plaintiff more than a year later, the uproar had settled. By then Chief Justice John Marshall and the other Justices had privately agreed that the Repeal Act was unconstitutional, but they wanted to avoid a showdown with the Republican Congress and with President Jefferson. So, in an apparent triumph of pragmatism over principle, the Court upheld the Repeal Act in its 1803 decision in Stuart v. Laird.9 Remarkably, the Court simply ignored the plaintiff’s objection to Congress’s dismissal of the sixteen Federalist circuit judges. I don’t think the Court would get away with that today! As for the plaintiff’s challenge to the circuit-riding system, the Court said that it had gone along with circuit-riding for so long that it could not now strike it down.
It was less than a year after the Repeal Act that, Justice Samuel Chase got himself into hot water with his fiery grand jury charge. In the course of instructing the jurors, Chase ranted against the Repeal Act and decried recent developments in his home state of Maryland. “[T]he abolition of the office of the sixteen circuit judges,” Chase declared, “has already … shaken” “the independence of the national judiciary … to its foundation.”10 Moreover, Chase told the jurors, the recent amendment of the Maryland state constitution to allow universal suffrage, “will, in my opinion, certainly and rapidly destroy all protection to property, and all security to personal liberty, and our Republican constitution will sink into a mobocracy, the worst of all possible governments.”11
It didn’t take long for President Jefferson to get wind of this speech. Jefferson soon wrote to his allies in the House of Representatives, suggesting that Chase be impeached. In due course, the House passed eight separate articles of impeachment against Chase. Most of them involved his alleged partiality in two highprofile trials over which he had presided while riding circuit. Ultimately, the Senate acquitted Chase of all these charges. But the charge on which the Senate came closest to convicting was that Chase, in his 1803 charge to the Baltimore grand jury, had “prostituted the high judicial character with which he was invested, to the low purpose of an electioneering partizan.” Just four more votes would have secured Chase’s removal from office.12 Floods and fatigue, it seems, were not the only perils faced by the circuit-riding Justices.
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FOR THE NEXT SEVENTY years, circuit-riding remained a part of the Supreme Court Justices’ duties. These duties were less onerous for some than for others. And they often afforded the Justices great autonomy in charting the course of the law. Justice Joseph Story, who was the circuit justice for the First Circuit for most of the first half of the nineteenth century, appears to have relished this office. “[I]f my name shall happen to go down to posterity,” Story wrote to a friend in 1840, “my character as a Judge will be more fully [and] accurately seen in the opinions of the Circuit Court than in the Supreme Court. In the former I speak for myself after full research [and] elaborate consideration [and] in the exercise of my own free judgment. In the latter I speak for the Court, [and] my free Judgments are modified, controlled [and] sometimes fettered by the necessary obedience to the opinions of my Brethren.”13
What Justice Story said was especially true because, in those days, the Justices almost never issued more than one, unanimous opinion.
Despite the opportunities that circuit-riding presented, its attendant problems only increased with the passage of time. Transportation improved, of course. But as the country expanded, so did the number of circuits and the territory the Justices had to cover. With the addition of each new circuit, a new Justice was added to the Supreme Court to ride it. By 1838, the number of circuits had increased to nine. That year, Justice McKinley’s duties on the Ninth Circuit—which then comprised Alabama, Louisiana, Mississippi, and Arkansas—required him to travel an astounding ten thousand miles.14 This before airplanes! But even more problematic was the incredible growth in the caseload of the Supreme Court and the circuit courts. The time consumed by riding circuit made it ever more difficult for the Justices to manage their docket at the Supreme Court.
In the face of these difficulties, attempts to abolish circuit-riding continued throughout the nineteenth century. But Congress steadfastly rebuffed these efforts. One is tempted to chalk this up to foolish obstinacy, and that may be as good an explanation as any. But the congressional debates over circuit-riding also reveal genuine concerns about the role of the Supreme Court and Supreme Court Justices in our nation. In essence, these legislators feared that the Justices would be corrupted by Washington, D.C.; that they would lose touch with the reality of trial courts; and that they would lose all connection with the states and with ordinary people from around the country. Here’s some of what they had to say.
Back in the nineteenth century, just like today, legislators liked to fulminate against the ill effects of Washington, D.C., on the public officials who reside there. Speaking on the floor of Congress in 1819, Senator William Smith of South Carolina predicted that, if the Justices
were relieved of their circuit-riding duties, they would become “completely cloistered within the city of Washington, and their decisions, instead of emanating from enlarged and liberal minds, will assume a severe and local character.”15
Others predicted that the Justices, if permitted to remain in the capital, would fall under the pernicious influence of Washington lawyers.
My personal favorite is Senator Abner Lacock of Pennsylvania, who explained how the Justices’ old age would contribute to this problem. “Old men,” Lacock warned, “are often impatient of contradiction, frequently vain and susceptible to flattery. The weaknesses incident to old age will be discovered and practiced upon by the lawyer willing to make the most of his profession, and located in the same city, holding daily and familiar intercourse with the judge.… The judges, bowed down by the weight of years, will be willing to find a staff to lean upon; and thus the opinion of the Washington Bar is made the law of the land.”16 Senator Lacock was just a spring chicken—forty-nine years old—when he wrote those words! I can tell you from personal experience that he knew virtually nothing of the effects of age. And, I might add, he greatly overestimated the guile of Washington lawyers.
But it was not just fear of Washington’s influence that kept circuit-riding alive so long. Throughout the years, legislators predicted that ending circuit-riding would estrange the Justices from the states. “Alienate the judges from the States,” declared Representative James Bowlin of Missouri in 1848, “consolidate the Court in the metropolis, and the day is not far distant, when the sovereign rights of the free States of this Confederacy will be swallowed up in this mighty vortex of power.”17
Others expressed the belief that circuit-riding made the Justices better judges by exposing them to the people and to the workings of trial courts. If circuit-riding were abolished, warned Senator George Badger of North Carolina, “We shall have these gentlemen as judges of the Supreme Court not seen by the people of the United States—not known and recognized by them …; but sitting here alone—becoming philosophical and speculative in their inquiries as to law—becoming necessarily more and more dim as to the nature of the law of the various States … unseen, final arbiters of justice, issuing their decrees as it were from a secret chamber.…”18
Despite these impassioned defenses of circuit-riding, the growing workload of the Supreme Court ultimately brought the practice to an end. By the 1880s, the Court had more than a thousand cases on its docket. Despite the Justices’ Herculean efforts, they could not keep up—the Court was an astounding three years behind in its work. In 1891, Congress at last addressed this crisis in the Evarts Act. The act created the U.S. Courts of Appeals to oversee the circuits, thus inaugurating the three-tier system of federal courts we have today.
It also established discretionary Supreme Court review by “writ of certiorari,” which is an order by which the Supreme Court opts to review a lower-court decision on appeal. When a court decides to hear an appeal, it is said to “grant certiorari.”
But far more important for present purposes, Congress at long last relieved the Justices of their circuit-riding duties. After more than a century on the road, the members of the Supreme Court could finally dedicate themselves exclusively to their work at the Court itself.
THE END OF CIRCUIT-RIDING did not, of course, bring an end to debates over the proper role of the Supreme Court and of Supreme Court Justices. Indeed, many of the concerns expressed by the historical defenders of circuit-riding are echoed in contemporary commentary on the Supreme Court. “Our Supreme Court Justices are isolated in a marble palace in Washington,” wrote then-dean Erwin Griswold of Harvard Law School in 1960.19 Griswold lamented the lack of opportunities for open dialogue between the Justices and members of the bar around the country—and he surmised that this detracted from the possibility of genuinely constructive commentary on the Court’s work.
More recently, scholars have opined that the Justices are out of touch with public values and the realities of the lower courts—and that this makes them ill-suited to decide the great constitutional issues of our day.20 Professor Akhil Amar of Yale has even argued that some version of circuit-riding should be reinstituted. “[I]t would not be a bad thing,” Amar says, “to get the justices outside the Beltway from time to time to sit with fellow federal judges elsewhere in the country in order to make them more attentive to state law and different perspectives in this vast country of ours.” And the Justices should preside over criminal trials from time to time, Amar says, because it would give us a chance to see up close the real-world effects of the Court’s criminal procedure decisions.21
Yet another professor, John McGinnis of Northwestern, has suggested that, instead of reviving circuit-riding, we should instead have “Supreme Court riding.” Instead of having the Supreme Court Justices do rotating duty on the lower courts, McGinnis suggests that we get rid of the Justices altogether and have lower-court judges sit in rotation on the Supreme Court. The lower-court judges could be randomly assigned to hear cases on the Supreme Court for half a year or a year at a time. Just as the circuit-riding Justices of history brought the Court to the people, the lower-court judges of today would bring the people to the Court.22
None of this is likely to happen, of course. But these discussions do reveal that the concerns expressed by the defenders of circuit-riding—about the need for connection between the Supreme Court and the rest of the country—are current concerns as well.
WE DO STILL RETAIN some remnants of the old circuit system. Most notably, each of the Justices is assigned responsibility for one or more of the thirteen federal circuits. For example, I was assigned to the Ninth Circuit. My responsibilities included keeping abreast of executions scheduled in states in the Ninth Circuit and summarizing any requests to stay the executions filed with the Supreme Court for the other Justices. The circuit justices have authority to decide emergency-stay applications and other motions for temporary relief originating within their respective circuits. For instance, a party to a case might ask the Supreme Court to “stay” a lower court’s ruling—that is, prevent it from going into effect—until it has had the chance to file a petition for certiorari. And circuit justices maintain active relationships with the judges in their circuits, frequently attending judicial conferences of lawyers and judges in their areas and so forth.
But the era of riding circuit is now long past, and that is a good thing. Constitutional problems aside, the idea of traveling hither and yon as an itinerant trial judge, even with the conveniences of modern transportation and communication, is unworkable and unattractive. The Supreme Court is now a very busy place—and being a Supreme Court Justice is at least a full-time job!
Nevertheless, we should be grateful for the efforts and sacrifices of the circuit-riding Justices, especially those of the founding era. By defending the Constitution and by helping to secure the role of the Supreme Court, they paved the way for all that the Justices do now. Nevertheless, the values long associated with circuit-riding are crucial—and we must continue to advance them in other ways. The role of the Justices makes it indispensable that they stay in touch with the concerns faced by the lower courts, the legal profession, the states, and, perhaps most important, the people.
THE SUPREME COURT’S CHANGING JURISDICTION
ON MY FIRST DAY SERVING AS A SUPREME COURT JUSTICE, I walked into my new chambers at the Court and was greeted by staggering mounds of papers strewn across the floor. It was quite a welcome! Hundreds of appeals to the Supreme Court had accumulated over the summer recess—appeals that I had a mere number of days to review with my law clerks before the Justices convened for the first Conference of the Term.1 At the Conference, I was to meet with the other eight Justices and discuss which among those stacks of appeals, known as petitions for certiorari, warranted the Court’s review.
That was my first taste of the Supreme Court’s certiorari process. When I first joined the Court, the Court was taking some 159 cases a year.2 These days the Court
hears around ninety cases a year. The Justices select those ninety cases out of approximately eight thousand petitions for certiorari. We have long grown accustomed to the notion that the Supreme Court has the power to pick and choose which cases to decide and thereby set its own agenda. But that was not always the case.
* * *
FOR THE FIRST CENTURY of its existence, the Supreme Court had no discretion over its caseload. Those were the days of “mandatory jurisdiction”: virtually every appeal to the Court had to be resolved. Article III of the Constitution confers Congress with the power to make “Exceptions” and “Regulations” to the Supreme Court’s “appellate Jurisdiction,”3 and in those early days, Congress played a dominant role in setting forth the bounds of which cases and controversies the Supreme Court would decide. Congress, for instance, insulated federal criminal convictions from Supreme Court review until 1889.4 Meanwhile, Congress provided that the Supreme Court was obligated to hear certain judgments of lower federal courts and of the highest state courts implicating or involving the Constitution, treaties, or federal laws.5 As soon as any such case reached the Court by way of a “writ of error,” the Justices were obligated to resolve the merits of each case.6 That was true irrespective of how negligible the national significance of the issue or how meritless the claim.
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