A People's History of the Supreme Court

by Peter Irons

  The justices decided many cases during their circuit-riding tours, but the vast majority were the kind of mundane contract and property squabbles that today would be relegated to small-claims courts. One circuit court case, however, placed the justices in the uncomfortable position of feeling compelled to rebuke—politely but firmly—both the president who nominated them and the Congress that confirmed them. The legal dispute that became known as Hayburn’s Case began in 1792, when Congress granted pensions to disabled and invalid revolutionary soldiers. The law provided that pension claims would first be decided by the circuit courts on which the justices sat with district judges; their rulings could be reviewed by the secretary of war, who could modify or deny any pension award. That same year, William Hayburn applied for a pension in Pennsylvania justices James Wilson and John Blair, sitting on circuit court, refused to consider Hayburn’s claim, even after Attorney General Randolph urged them to take off their judicial robes and decide the claim as “commissioners,” deputized by him.

  Wilson and Blair explained their plight in a letter to President Washington. Reminding him of his constitutional obligation to “take care that the laws” of the United States “be faithfully executed,” they apologized for the “painful occasion” of refusing a request from the attorney general. But “the business directed by this act is not of a judicial nature,” they wrote. Asking the justices to perform an executive task violated the “important principle” of separation of powers between the branches of government. Wilson and Blair assured Washington that their position “was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, we hope never to experience again.” Despite this letter, feelings of compassion persuaded five justices to rule on pension claims as “commissioners,” although Wilson still refused to act in an “extra-judicial” role.

  This whole episode was embarrassing to the Court, which had yielded to entreaties to act outside its delegated powers. But the decision in Hayburn’s Case, even if expressed in letters to the president, was “the first instance in which a Court of Justice had declared a law of Congress to be unconstitutional,” as Representative Elias Boudinot told the House. This was not a ruling of the Supreme Court as an institution, but the first justices paved the way in Hayburn’s Case for their successors—most notably Chief Justice John Marshall—to exercise the power of judicial review over acts of Congress. The judicial refusal in Hayburn’s Case to breach the constitutional separation of powers between the branches of the federal government prompted congressional denunciation and even calls for impeachment, the first of many efforts to punish the justices for decisions that federal or state lawmarkers considered judicial “usurpation” of their legislative powers. Ironically, the congressional bluster about impeachment over Hayburn’s Case—which quickly died down—came largely from the Federalist majority, which had confirmed all the justices and now felt insulted by their rebuke.

  The Court’s first real foray into constitutional law provoked an even greater furor than Hayburn’s Case. This dispute began in 1792 when Alexander Chisholm, a citizen of South Carolina, filed suit against the state of Georgia. Chisholm was acting as executor of the estate of Robert Farquhar, who had sold cloth and uniforms to Georgia during the Revolution but was never paid. The amount Chisholm sought was substantial for that time, nearly $70,000 in damages. Georgia’s attorney general, acting for Governor Edward Telfair, responded in federal district court that his “sovereign” state was immune from suit by citizens of other states. The case of Chisholm v. Georgia became tangled in legal brambles, but rather quickly wound up in the Supreme Court.

  Alexander Chisholm made a smart move when he hired Attorney General Edmund Randolph to represent him as a private lawyer. Congress then allowed government lawyers to supplement their meager salaries with outside work; even today, district attorneys in rural counties of several states work only part-time and are permitted to maintain private practices. The state of Georgia made a dumb move in defending itself against Chisholm’s suit. The Supreme Court’s reporter, Alexander Dallas, noted that the state’s lawyers presented a “written remonstrance and protestation” that the Court lacked jurisdiction to hear the case, “but in consequence of positive instructions, they declined taking any part in arguing the question.”

  Dallas did not mention in his notes, however, that Georgia had hired him to represent the state in the Supreme Court. He sat quietly in the chamber and recorded Randolph’s argument, which consumed several hours of oratory. Randolph first admitted that his position was “unpopular” in the states. Even his home state of Virginia, “whose will must always be dear to me,” had denied that states could be sued by citizens of other states. But Randolph held firm on this issue. Asking him to surrender for the federal government “a constitutional right, supported by my own conviction,” would justly subject him to “official perfidy.” Stripped of rhetorical excess, Randolph’s argument was simple: Article III of the Constitution gave the Supreme Court jurisdiction over “controversies between a state and citizens of another state.”

  Randolph dismissed Georgia’s claim that “state sovereignty” made it immune from suit by “foreigners” like Chisholm. The Constitution had replaced the Articles of Confederation, under which states “retained their exemption” from suits by other states of their citizens. It was now “the people” of the United States, not the individual states, who were sovereign. The “new order of things” under the Constitution required “diminutions of sovereignty” by the states. Randolph professed “horror” at Georgia’s argument: “Shall the tranquility of our country be at the mercy of every state?” The clear words of the Constitution provided “an easy and usual construction” of the answer to this rhetorical question. When Randolph sat down, Chief Justice Jay asked if any lawyer present wished “to take up the gauntlet in opposition to the attorney general.” Alexander Dallas recorded jay’s words and remained silent.

  Those who search today for the “original intent” of the Framers would cheer the Court’s decision in Chisholm v. Georgia. All the justices who decided the case had been Framers, in various roles, and all but one of the five sitting justices agreed that the Constitution granted the Court jurisdiction in this case. Their separate opinions allow an insight into each justice’s mind. John Blair considered—and quickly dismissed—Georgia’s claim that the Court could only decide cases in which states brought suit as plaintiffs against citizens of other states. “A dispute between A. and B. is surely a dispute between B. and A.,” he wrote. The “clear and positive directions” of the Constitution governed this case for Blair.

  James Wilson, whose opinion rambled on for thirty pages, concluded after many pedantic digressions that “the term sovereign is totally unknown” to the Constitution. Wilson not only played a leading role in drafting Article III at the Philadelphia convention, but he was the Court’s leading advocate of federal supremacy over the states. “As to the purposes of the Union,” Wilson declared, “Georgia is not a sovereign state.” Justice William Cushing and Chief Justice John Jay wrote much shorter opinions and reached the same conclusion.

  Only Justice James Iredell picked up the “gauntlet” of state sovereignty. But his opinion took a detour around the Constitution. Iredell argued that “judicial authority” depended on “acts of the legislature, appointing courts, and prescribing their methods of proceeding.” Congress had not, in Iredell’s view, given the Supreme Court jurisdiction in cases of “assumpsit,” the common-law “writ” on which Chisholm based his claim against Georgia. “Writs” are simply "writings” that allow parties in lawsuits to ask for judicial relief; the “writ of habeas corpus” is the most famous example. Congress had, in fact, provided in the Judiciary Act of 1789 an “all-writs” section that allowed the Court to issue orders “agreeable to the principles and usages” of the common law. This clearly a
nticipated writs such as assumpsit, which means in plain English an order to perform an agreement such as a contract.

  Justice Iredell, whose opinion was picky on issues of judicial procedure, totally ignored the wording of Article III. He simply claimed that states were “totally independent” of federal control unless Congress passed a “new law” to carry out its delegated powers. Iredell did not consider the Judiciary Act a “new law” on the subject of writs of assumpsit, since it did not mention this writ by name. His reasoning seems weak in retrospect. Most likely, Iredell was responding to the political backlash from states that had ratified the Constitution with reluctance to give up their “sovereign” powers. His own state of North Carolina had initially rejected the Constitution, ignoring Iredell’s pleas to join the federal union. Even though he now wore a judicial robe, Iredell realized as an astute politician that the Court’s decision in Chisholm would be as “unpopular” as Attorney General Randolph had predicted.

  Reaction from the states was swift and ferocious. Within days of the Chisholm decision in February 1793, state legislatures—led by Virginia and Massachusets—besieged Congress with resolutions demanding a constitutional amendment to overturn the Court’s ruling. Virginia’s resolution attacked the decision as threatening “a general consolidation of these confederated republics,” reflecting lingering Antifederalist sentiment. But this was a temperate response compared to the action of the Georgia house, which passed a bill providing that any federal official who attempted to enforce Chisholm’s judgment would be “guilty of felony and shall suffer death, without benefit of clergy, by being hanged.” The bill never became law, but it expressed the bitter reaction by states which faced a multitude of suits by citizens of other states, most of them filed to recover property and money confiscated from British Loyalists during the Revolution.

  Even though Federalists controlled both houses of Congress and held off action on the state resolutions for another year, the intense pressure threatened political damage. Congress adopted the Eleventh Amendment in March 1794, providing that the “judicial power of the United States” did not extend to suits “against one of the United States by citizens of another State” or by subjects of foreign nations. But the amendment was not finally ratified until January 1798. Having fired their shots at the Supreme Court, which promptly retreated and dismissed the pending suits against states, the victors took their time in leaving the battlefield.

  The furious reaction to Chisholm shocked the Supreme Court, which had undertaken its new tasks with fortitude, standing up to congress, the president, and the states. Chastened by passage of the Eleventh Amendment, and by calls for impeachment in. the wake of Hayburn’s Case, the justices ducked their heads for the next decade and avoided further confrontations. Service on the Court became less and less attractive.

  President Washington found it difficult to find anyone to fill the post of Chief Justice after John Jay resigned in 1795 and the Senate rejected John Rutledge to replace him. Patrick Henry and Justice William Cushing both declined the post, and Washington finally selected Oliver Ellsworth of Connecticut, a delegate to the Philadelphia convention in 1787 and later a Federalist stalwart in the Senate. His colleagues quickly confirmed Ellsworth, an extremely wealthy, arrogant, and aristocratic man whose four-year tenure as Chief Justice was marked only by his success in persuading the Court to abandon the practice of separate opinions in each case. The Court’s majority now spoke in one voice. But that voice, until John Marshall succeeded Ellsworth in 1801, was weak and cautious. The emphatic reversal of Chisholm by constitutional amendment eroded whatever resolve the justices had mustered to assert their influence and independence. The Supreme Court ended its first decade anything but supreme in public estimation.

  9

  “To Say What the Law Is”

  During George Washington’s second presidential term, which ended in 1797, the Supreme Court tried hard to avoid stirring up controversy. The uproar over Chisholm v. Georgia in 1793, which led to adoption of the Eleventh Amendment, weakened the Court’s already shaky prestige and made the justices wary of exercising their power to strike down state and federal laws. There were few public arguments over the Constitution during these four years; most politicians—and the public as well—simply ignored the Court and turned to more pressing issues. Passions ran high over the war between England and France and its impact on American shipping and trade. The dominant Federalists, who controlled both houses of Congress, sided with the British, while their opponents—led by Thomas Jefferson and calling themselves Republicans—favored the French.

  President Washington, who stayed aloof from the loud and sometimes vitriolic debates in Congress over foreign policy, devoted most of his energies to keeping the United States from entanglement in foreign wars. Having been lectured by three Supreme Court justices in Hayburn’s Case for trespassing on their turf, Washington avoided further conflict with the Court before he retired to his Mount Vernon estate. Washington did, however, nominate two more justices before he left office. Both met, his basic test of supporting the Federalist Party, but they polar opposites in temperament and legal talent.

  After the resignation in 1793 of Justice Thomas Johnson, who complained bitterly about his “circuit-riding” duties, Washington replaced him with William Paterson of New jersey, a much younger man at forty-seven. Paterson had been a prominent figure in the Constitutional Convention, defending the rights of small states but also proposing a strong federal judiciary. He married into an extremely wealthy family, the van Rensselaers, and dressed in the velvet-and-lace fashion of the British aristocracy whose manners he adopted. Despite his foppish appearance, Paterson was a solid lawyer, having served as New Jersey’s attorney general for seven years. During his term in the first Senate, he helped Oliver Ellsworth draft the Judiciary Act of 1789. Among Washington’s Supreme Court choices, Paterson was the workhorse, and he plowed his Federalist furrow with little deviation from its plotted course until his resignation in 1806.

  In contrast to Paterson, Samuel Chase of Maryland was the Court’s bucking bronco, untamed and unbridled. Washington selected Chase to replace John Blair, who resigned in 1795 after five undistinguished years as a justice. The president never revealed his reasons for this choice; most likely, he rewarded Chase for his fervent support of Washington during the Revolution as a member of the Continental Congress. Hardly anyone else spoke well of Chase. Even Washington, three months before he nominated him to the Supreme Court, wrote to Alexander Hamilton that Chase had “opposed the adoption of the Constitution” and had been “accused of some impurity in his conduct.” Chase, in fact, had been forced to resign from Congress in disgrace for trying to corner the flour market by corrupt means.

  Much like James Wilson, Chase had lobbied President Washington for nomination to the Court in 1789, promising that he would “execute so honorable a station with integrity, fidelity, and diligence, and I flatter myself, that you will never have occasion to regret the confidence reposed in me.” Washington did not respond to this letter, but seven years later he elevated Chase from chief justice of Maryland to the Supreme Court. After this decision, several people questoined Chase’s character and integrity. One observer reported that Chase “takes beer aboard” and theat his drinking had caused a “scandal” that made his Maryland colleagues “very glad to get rid of him which is a very bad symptom.”

  John Adams, who obviously heard these reports, wrote to his wife, Abigail, that Chase’s “corpulency” would prevent “his riding Circuit very long.” Adams added that his “character has a mist about it of suspicion and impurity which gives occasion to the enemy to censure.” The enemies Adams had in mind were Jefferson and his Republican allies. James Madison expressed his view to Jefferson, not in words but in punctuation marks. “Chase in the place of Blair!!!!”

  President Washington’s Supreme Court nominations illustrate the central importance of foreign affairs to a
ll branches of the national government—including the Supreme Court—during this early period of American history. Chief Justice John Jay eagerly left his judicial duties to negotiate a commercial treaty with Great Britain. Criticism of the Jay Treaty cost John Rutledge his brief tenure as Jay’s successor. Chief justice Oliver Ellsworth, who finally replaced Jay, spent the last months of his judicial career on a diplomatic mission to France. Justice Chase dropped his judicial duties in 1796 to campaign for John Adams, who rode a pro-British tide of public opinion to a slim victory by three electoral votes over Thomas Jefferson. Under the Constitution, Jefferson became vice president and used his office to torment Adams and support the French cause.

  Adams tried to steer a middle course between the extreme Federalists in his own party, led by Alexander Hamilton, who feared the French Revolution as little more than “rule by rabble,” and the Jeffersonian Republicans, who denounced the president as a British tool. Adams was a born-and-bred aristocrat in social outlook, but he did not want to involve the country in costly and dangerous warfare. So he decided to send a diplomatic mission to France, as Washington earlier had dispatched Chief Justice Jay to England. He chose two former delegates to the Constitutional Convention of 1787, Elbridge Gerry and Charles Cotesworth Pinckney, and a younger Virginia lawyer, John Marshall.

  The neophyte diplomats arrived in Paris in October 1797, expecting to meet with Foreign Minister Talleyrand. But the imperious Talleyrand refused to meet with the Americans for several months, finally sending three men—who would not reveal their names—to their hotel after dark. The mysterious Frenchmen demanded an American apology for past (and unspecified) misdeeds, a $10 million loan to France, and a $1 million bribe to Talleyrand and his friends. After months of haggling with the still-anonymous Frenchmen, the American delegation indignantly refused to accept these conditions for a treaty. Marshall reported these events to Adams in March 1798, and the president promptly sent his letter to Congress, labeling Talleyrand’s extortioners as “Messr. X, Y, and Z.” When Marshall returned to Philadelphia (still the nation’s capital) from Paris, he received a hero’s welcome and found the country inflamed over what everyone called the “XYZ affair.”