It comes as a surprise to many--including a number of lawyers and law students--to learn that John Marshall was not in fact the country's first Chief Justice, but rather its fourth (or, according to some recent scholarship, its fifth). Before there was Marshall, there were John Jay, John Rutledge (briefly), possibly William Cushing (even more briefly), and Oliver Ellsworth. While legal historians may be familiar with these nonhousehold names, all too often when these men, and the Court over which they presided from 1789 to 1800, do receive mention, it is only to be dismissed as inferior to what immediately followed. As Robert McCloskey aptly put it in The American Supreme Court, "[t]he great shadow of John Marshall ... falls across our understanding of that first decade; and it has therefore the quality of a play's opening moments with minor characters exchanging trivialities while they and the audience await the appearance of the star." (1) In the last ten years, scholars have begun to focus more attention on the pre-Marshall Court, (2) but a certain derogatory attitude persists. One recent popular history of the Supreme Court, for example, describes the early Justices as "a thoroughly undistinguished lot." (3)
While I have no wish to dislodge Marshall from his position in the pantheon of judicial heroes, I would suggest that we will obtain a clearer picture of the Supreme Court in its first decade if we bring it out, as best we can, from under Marshall's "great shadow." It must be remembered that the era during which Marshall was Chief Justice differed in significant ways from the decade of the 1790s. In this earlier period, despite the new American rhetoric about separation of powers, a British and colonial tradition of blurring the distinction between the executive, legislative, and judicial branches continued to form people's assumptions about how the federal government would function. And that government was still so new and fragile that there was serious doubt, even among some of those at its helm, as to whether it would survive. (4) The circumstances of the 1790s called not for bold strokes, but for judicial caution.
While much is still unknown, and most likely unknowable, about the internal workings of the Court in this period, much more documentary evidence is available now than in prior years, thanks in large part to the efforts of the project on which I work as an associate editor. Drawing on that evidence and other sources, I will attempt to shed some light on the nature of the Chief Justice's role in the 1790s. I will first discuss the British and colonial origins of the office and the factors that were weighed in the selection of Chief Justices in order to gain insight into how the position was viewed by contemporaries. I will then turn to the extrajudicial duties and responsibilities shouldered by Chief Justices in the 1790s, and, lastly, attempt to assess the role and influence of the Chief Justice within the Court.
THE ORIGINS AND NATURE OF THE OFFICE
Where Did the Idea of a Chief Justice Come From?
Let us begin at the very, beginning: why have a Chief Justice at all? The Constitution itself appears to be of two minds on the subject. While Article III makes no mention of a Chief Justice, (5) in Article I the Framers seem to assume that such a position will indeed be created: the clause dealing with impeachments provides that "[w]hen the President of the United States is tried, the Chief Justice shall preside." (6) It was left to the first Federal Congress to resolve the issue, which it did without much debate. The original Senate bill that became the Judiciary Act of 1789 provided for a "Chief Justice and five associate Justices," and that language emerged from the Senate debate unchanged. (7) In the House, Congressman Aedanus Burke moved to strike out the phrase, "Chief Justice," on the ground that it was "a concomitant of royalty." (8) But after being informed that the offending phrase appeared in the Constitution itself, Burke withdrew his motion. (9)
Perhaps the Constitution failed to specifically mandate the position of Chief Justice because the Framers simply assumed that one would be appointed. Nearly all contemporary models for a high court included a chief judge or justice. Most prominent among these models was the Court of King's Bench, the highest English common-law court. (10) In the colonies--and then the states, under the Articles of Confederation--the majority of high courts also had a chief magistrate. (11)
The Nature of the Office
Few of the statutes specifying the appointment of a chief judge or justice--including the Judiciary Act of 1789--provide any insight into the duties or significance of the position, as distinct from those of an associate, assistant, or "puisne" judge or justice. But in eighteenth-century Britain, there was a long-standing tradition of having the chief justice--and, to an even greater extent, the chiefs counterpart in equity, the chancellor--serve in the cabinet and provide extrajudicial advice to the king and the House of Lords. (12) Similarly, in America during the colonial period, judges of the high courts frequently advised the legislative and executive branches and held multiple offices. (13) Under the unwritten British constitution, the concept of "balanced government" included no independent role for the judiciary. Rather than dividing governmental power by function, the British model "balanced" classes or orders: the monarchy, as represented by the Crown; the aristocracy, by the House of Lords; and the "people," by the House of Commons. While theorists did assign different governmental functions to different political actors, the judicial function was usually seen as a component of the executive power that belonged to the monarch. And yet, given that the House of Lords was also the nation's highest court, at least a part of the judicial function belonged to the legislature. (14)
In this country, the concept of separation of powers--with governmental power divided between the executive, legislative, and judicial branches--had taken root in the formulation of state constitutions beginning in 1776, and it continued to exert a profound effect on the Framers of the Federal Constitution. The meaning of the phrase, however, was still ambiguous and developing; (15) certainly it did not mean then what it does today. As Stewart Jay has detailed, the Framers were primarily concerned with encroachments by one branch on the proper preserve of another. With regard to the judiciary, this meant erecting safeguards against legislative domination of the courts--hence the provisions in Article III guaranteeing life tenure and prohibiting diminution in salary. (16) But there is no evidence that the delegates to the Constitutional Convention saw any difficulty in having judges voluntarily furnish advisory opinions or perform extrajudicial service. (17) Presumably, given long-standing British tradition, such advice and service would be expected primarily from the nation's highest judicial officer, the Chief Justice.
In any event, it is clear from contemporary commentary that the position of Chief Justice was seen to confer great importance on the man who held it. In August 1788, John Adams's daughter, Abigail Smith, noted the prediction of Colonel Henry Lee, a member of the Confederation Congress, that the office of Chief Justice would be "of more importance than [that of] the Vice President," and expressed her hope that her father would choose the former. (18) And to John Jay, the positions of Chief Justice and secretary of state appeared sufficiently fungible that, according to two separate commentators, he was waiting to see which salary would be higher before making his choice. (19)
Competition for the post of Chief Justice was intense. Despite Jay's emergence as an early front-runner, (20) other names were mentioned as well, including those of three men--William Cushing, John Rutledge, and James Wilson--who were ultimately chosen as Associate Justices. (21) While Rutledge accepted the post of senior Associate Justice, he clearly felt slighted, resigning five months later to become chief justice of the South Carolina Court of Common Pleas. (22)
The most intensive lobbying campaign for Chief Justice was on behalf of Wilson, a Pennsylvania lawyer and prominent legal thinker. In April 1789, Wilson wrote directly to Washington, declaring that "my Aim rises to the important Office of Chief Justice of the United States." (23) Washington's response was noncommittal, (24) as it was to most office-seekers at this point, but Wilson's prominent friends continued to press for his appointment. Benjamin Rush--a Philadelphia physician who had joined Wilson in leading the campaign for ratification of the Constitution in Pennsylvania--urged John Adams to use his influence as president of the Senate to further Wilson's nomination. (25) And Robert Morris--the "financier of the Revolution" and a senator from Pennsylvania, who was said to have "the ear of the President as much or more than any man"--was also working behind the scenes on Wilson's behalf. (26) Although Adams, in declining to support Wilson for Chief Justice, but promising to support his nomination as one of the Associate Justices, remarked that "the difference is not great between the first and the other Judges," (27) it is clear that the general perception was quite the opposite.
THE SELECTION OF A CHIEF JUSTICE
The First Appointment: John Jay
One way of assessing the eighteenth-century view of the Chief Justice's role is by looking at the men chosen and rejected by President Washington and attempting to discern the reasons for his actions.
Generally, in selecting nominees for the Supreme Court, Washington considered a number of factors: character and reputation, health, legal (although not necessarily judicial) experience and ability, loyalty to the concept of a federal...