A People's History of the Supreme Court

by Peter Irons

  When the Court convened the following morning, a fourth justice took his seat to make up a quorum. The court crier opened the proceedings with a ritual invocation that has remained unchaged for more than two centuries: “Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.” Whatever anticipation remained from the previous day’s abortive session was quickly dissipated. No person had business before the Supreme Court that day. No lawyer approached the bench to argue a case. The Court’s docket was completely bare. The justices bore no responsibility for their lack of judicial business. After all, the primary business of judges is hearing and deciding cases, and courts cannot manufacture them. judges on appellate courts must wait for cases to proceed through the lower courts, a process that has always been time-consuming, and frustrating to impatient litigants. Lacking any cases to decide, the four justices busied themselves with the adoption of procedural rules and the admission of lawyers to the Court’s bar. Few lawyers sought admission during this session, since very few members of state bars represented clients whose cases fit within the Court’s jurisdiction.

  Hardly anything about the first meetings of the Supreme Court would have impressed anyone who had witnessed the proceedings of English courts, with their bewigged and powerful judges who laid down the principles of the common law that formed the foundation of the American legal system. Many of England’s judges—men like Sir Edward Coke and Lord Edward Mansfield—enjoyed great prominence. Even the “common people” in England recognized the “Law Lords” as men of power and privilege. But in the new United States, hardly anyone who did not move in legal circles was likely to recognize a single one of the eleven men George Washington chose for the Supreme Court during his eight years as president. Only Franklin Roosevelt, who occupied the White House for twelve years, approached this record; he selected eight justices and elevated one sitting justice to the Chief’s seat. Roosevelt’s choices included some of the most illustrious names in American legal history: Hugo Black, Felix Frankfurter William O. Douglas, Robert Jackson, and Chief Justice Harlan Fiske Stone. The men Washington placed on the Court, in contrast, were a thoroughly undistinguished lot. One spent time in debtors’ prisons for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single Court session; one was impeached for political bias on the bench; one was insane; and another was senile. The first Chief justice campaigned for state office from the bench and spent much of his tenure on diplomastic missions abroad. The second had already resigned once from the Court. to take a state judicial post, and was rejected by the Senate after serving five months as Chief Justice. The third made no secret of his boredom in the post and left for a more exciting career in state politics.

  One reason for Washington’s sorry record was that he limited his selections to men whose common attribute was loyalty to the Federalist cause. But almost. every justice has come from the party of the president who nominated him—or, in two cases, her—to the Court. The major reason Washington picked such poor justices stemmed from the Court’s poor reputation in its early years. Almost as many men turned down offers to serve on the Court as those who accepted. The Court had little business; the salary was low; “circuit-riding” duty was burdensome; and the Court’s quarters—as the nation’s capital shifted between three cities—were cramped and uncomfortable. In truth, service on the Court held few inducements for lawyers of eminence and esteem.

  Washington’s first choice for the Supreme Court, and the first Chief Justice, was John Jay of New York. Jay was born into the American aristocracy of mercantile wealth, and he married into the landed wealth of the Livingston family, the richest in the country. His favorite maxim was that “those who own the country ought to govern it,” and he advocated stringent property qualifications on voting. Jay also stated that “the wise and the good never form the majority” of society and that, consequently, government must guard against the “never ceasing union of the wicked and the weak.”

  Jay brought to his position as Chief justice a lucrative legal practice, an extensive political background, and very little judicial experience. He had been elected to the First Continental Congress in 1775, in which he spoke against separation from Great Britain. But he switched sides and supported the Revolution once Congress adopted the Declaration of Independence. Several years before the states ratified the Cosnstitution, he served as New York’s chief judge, deciding cases that primarily involved property and contract disputes. Jay had more interest in national politics than he did in minor legal squabbles. He resigned his judicial post after less than two years to return to the Confederation Congress, which elected him president in 1778. With the hard-won victory of General Washington’s army over the British in sight, Congress appointed Jay in 1781 to the delegation that negotiated a peace treaty with Great Britain.

  His appetite whetted by this diplomatic success, Jay eagerly accepted his appointment by Congress in 1784 as secretary for foreign affairs, and he spent five years in this post before President Washington offered him the choice of serving the new federal government as Chief Justice or secretary of state. Jay chose the former post, for reasons that are hard to explain. One colleague in Congress wrote to a friend that Jay “is waiting to see which salary is best, that of Lord Chief justice or Secretary of State.” The former job paid $500 more per year, a sum unlikely to entice the wealthy lawyer. Most likely. Jay realized that disputes between the United States, England, and France had reached an impasse that threatened further warfare. He may have anticipated—or even hoped—that Thomas Jefferson, who accepted the post as secretary of state, would become so entangled in these disputes that Washington would ask Jay to step in and negotiate another treaty to resolve these dangerous conflicts. That is, in fact, what happened. Jay received national acclaim for negotiating the “Jay Treaty” with Great Britain in 1795, settling the commercial disputes between the two countries. New York’s voters rewarded Jay’s diplomatic victory the next year by electing him governor, the job he always wanted.

  With the post as Chief Justice open after Jay’s resignation, President Washington turned to the second man he had named to the Supreme Court in 1790, John Rutledge of South Carolina. Washington made a particularly bad choice, not once but twice. As a delegate to the Constitutional Convention, Rutledge had vehemently defended slavery. But support for slavery, in Washington’s mind, did not disqualify a man for the Supreme Court. Rutledge was a loyal Federalist and had lobbied hard for appointment as Chief Justice. He was disgruntled that John Jay got the post, but agreed to serve as an associate justice. Rutledge had little attachment to democratic principles. During the Revolution, he resigned as South Carolina’s governor because its constitution did not include stringent property restrictions on voting. Rutledge returned as governor after the legislature limited the post to those who owned plantations worth at least 10,000 pounds in British currency. After the Senate confirmed his Supreme Court nomination in 1789, Rutledge did not attend a single session, and he resigned in 1791 to become chief justice of South Carolina.

  Because the Senate was not in session when President Washington selected Rutledge in 1796 to replace Jay, the new Chief Justice held a “recess” appointment until the Senate resumed its business. Most senators were appalled at this nomination. Shortly before Washington sent Rutledge’s name to the Senate, Attorney General Edmund Randolph advised the president. that “it is very seriously whispered” that the prospective Chief Justice was “deranged in his mind.” Perhaps he was a victim of what we now call Alzheimer’s disease. On the other hand, Rutledge might have been a victim of political distemper. He violently denounced in 1795 the treaty that Jay negotiated with Great Britain. After his nomination as Chief Justice, Rutledge delivered an inflammatory speech in South Carolina against the Jay Treaty, denouncin
g it as a “puerile production” and “a surrender of our rights and privileges” to the British. This act. of political disloyalty prompted Randolph to caution Washington that Rutledge’s speech was “proof of the imputation of insanity.” Randolph warned the president a week later that Rutledge’s “attachment to his bottle, his puerility, and extravagances, together with a variety of indecorums and imprudencies multiply daily.”

  Rutledge’s political blunders doomed his nomination, which the Senate rejected by a vote of fourteen to ten. John Adams wrote to his wife, Abigail, that Rutledge deserved his rejection. “Chief justices must not go to illegal meetings and become popular orators in favor of sedition,” wrote Adams, who later prosecuted his own political enemies for sedition. Nonetheless, Rutledge served—however briefly—as Chief Justice of the United States, and wrote opinions in two cases that involved claims against foreign ships under admiralty law. These cases had no impact on constitutional law, and John Rutledge had no impact on the Supreme Court.

  President Washington had decided—and liter presidents followed his example—that the Supreme Court should reflect the nation’s geography. His first two nominees, Jay and Rutledge, represented the North and South. With six positions to fill, Washington maintained this regional balance in his remaining choices. He awarded the Court’s third seat in 1790 to William Cushing of Massachusetts. Cushing was almost bred for judicial service; his father and grandfather had both served the British crown as judges before the Revolution. He had become chief judge of the Massachusetts courts in 1780, and later ruled in several cases against debtors, including the farmers who took up arms against the state government in Shays’ Rebellion. After Jay resigned as Chief Justice in 1795, and the Senate rejected Rutledge, President Washington turned to Cushing, after his first choice—Patrick Henry of Virginia, the Antifederalist firebrand whose distrust of the federal government had cooled—declined the offer. The Senate confirmed Cushing, but he declined to serve, citing illness and age—he was then sixty-three years old—as the reasons. Despite his reservations, Cushing proved to be remarkably healthy and remained on the Court until his death in 1810. But he did not put his fading energy into judicial opinions; during his twenty-one years on the Court, Cushing wrote just nineteen opinions, all of them brief. From beginning to end, he remained a true-blue Federalist, voting in virtually every case to uphold the powers of the federal government against the states.

  Washington picked two other southerners for the first Supreme Court. The president’s first choice from his own state was George Wythe, a noted lawyer and chancellor of Virginia. But Wythe declined and Washington turned to John Blair, Jr., an old friend who had been a delegate to the Constitutional Convention in 1787 and said virtually nothing during the debates. Blair remained on the Court for five years and wrote almost nothing of significance. The president’s next choice, Robert Harrision of Maryland, served for only five days before returning his commission to become chancellor of Maryland. Washington then turned to James Iredell, a leading North Carolina Federalist who became the youngest justice, at thirty-eight, although he died after nine years on the Court. As a lawyer, he represented plantation owners and wealthy merchants. Of all the Federalist justices, Iredell was the only one who displayed any concern for the rights of states against the federal government.

  The best lawyer of those Washington picked for the Supreme Court turned out the worst in personal terms. James Wilson of Pennsylvania had played a major role in framing the Constitution and was perhaps second only to James Madison as a force at the Philadelphia convention. Although he dressed and lived like an aristocrat, he supported popular election of both houses of Congress and the president and opposed property qualifications on voting. Born and educated in Scotland, Wilson had an incisive mind and a firm belief in national power over the states. But he also had serious character flaws. For one, his personal vanity was matched by overweening ambition. Wilson sought the office of Chief Justice through shameless flattery and self-promotion. He wrote to President Washington that “I commit myself to your Excellency without reserve and inform you that my aim rises to the important office of Chief Justice of the United States. But how shall I proceed? Shall I enumerate reasons in justification of my high pretensions? I have not yet employed my pen in my own praise.” Washington answered with an implied rebuke: “I presume it will be unnecessary for me to say that I have entered upon my office without the constraint of a single engagement and that I never wish to depart from that line of conduct which will always have me at full liberty to act in the manner which is befitting an impartial and disinterested Magistrate.” Nonetheless, Washington admired Wilson’s legal skills and prevailed on him to accept the post of associate justice under John Jay.

  Wilson had a more serious flaw than ambition. He was also a reckless speculator in land and finance, which proved to be his downfall. Before and after he joined the Supreme Court, Wilson borrowed heavily to invest, in bank stock and land grants in states from Pennsylvania to Georgia. Unable to pay his mounting debts and hounded by creditors, he became the first—and, so far, the only—justice to be jailed while serving on the Court, not once, but twice. Humiliated by his first term in debtors’ prison, Wilson traded circuit-riding duties with Justice Iredell in 1798 and took refuge in North Carolina, where another creditor had him jailed for two months. Wilson died shortly after his release, penniless and stripped of the power he had once wielded on the Supreme Court.

  The first six men who actually decided cases on the Supreme Court differed in background, experience, and personality. But they shared four attributes. All were staunch Federalists; all had participated in framing the Constitution or campaigned for its ratification; all belonged to or represented the creditor class with wealth in land or finance; and all believed that government’s primary function was protecting property rights from the debtor class of workers and small farmers. In these respects, they shared little with “the people” in whose name the Constitution was framed. But they met the test Washington imposed on his judicial choices: loyalty to his party and its nationalistic goals. The first justices shared another attribute: none had any experience in applying and construing the Constitution of the new nation. How, then, did they approach this task?

  The Court’s first answer to this important question did not come until the justices had spent almost three years waiting for a case that raised constitutional issues. Chief Justice Jay had adjourned the Court’s first three terms—two in 1790 and one in 1791—without issuing a single legal decision. (During these early years, the Court held two “terms” each year, in February and August.) Not until the August term of 1792 did the justices actually decide a case and issue opinions. They had no need to consult the Constitution for guidance in the first case, Georgia, V. Brailsford, which began in 1774 during the colonial period and grew out of efforts to collect debts owed by American citizens to British subjects whose property had later been confiscated during the Revolution. The legal issues before the Supreme Court were entirely procedural and involved the state of efforts to intervene in the case and lay claim to the confiscated funds. The legal briefs in the case bristled with terms like “treason” and “fraud,” but this was really just a debt-collection case that raised no issues of constitutional interpretation. The six justices, who finally had work to do, dug into the procedural niceties and decided, by a vote of four to two, that Georgia was entitled to an injunction to keep the disputed funds in state hands until a lower court tried the claim.

  The only significance of the Brailsford case was that the Court adopted the practice of each justice delivering an opinion in each case, known in legal parlance as seriatim opinions. The Brailsford opinions were brief, ranging from one to three paragraphs in length, and were framed in the language of equity, the branch of law based on notions of fairness between the parties. Chief justice Jay put the question in these words: Would it be “equitable to stay the money in the hands of the marshal until the right to it is fai
rly decided?” He and three colleagues agreed that it would, over the dissenting opinions of two justices. The Court’s decision sent the case back for trial on the merits, with the disputed funds in the state’s hands.

  Three days before the Court decided the Brailsford case, the Gazette of the United States alerted its readers that “Business of great importance it is said is pending” before the justices. The decision itself, however, passed without comment. The Gazette and other newspaper had little to report of the Court’s business during its first three years of operation. This did not reflect any lack of diligence by the justices, who in fact were kept busy—too busy for some—by the circuit riding duties imposed on them by Congress in the Judiciary Act of 1789. Congress had required in this bill that two Supreme Court justices sit with each federal district judge in four judicial terms each year. The nation was divided into three circuits (thus the initial number of six justices) with the idea of bringing federal judges closer to the people. Given the deplorable state of roads and inns of the time, most justices resented their duty of “riding circuit” around the country. Justice Thomas Johnson, who joined the Court in 1792, resigned the following year because, as he wrote to the president, “I cannot resolve to spend six months in the year of the few I may have left from my family on roads at taverns chiefly and often in situations where the most moderate desires are disappointed; my time of life, temper and other circumstances forbid it.” Chief Justice Jay complained that his circuit-riding duty “takes me from my family half the year, and obliges me to pass too considerable a part of my time on the road, in lodging houses, & inns.”