Supreme Court, 1789–1801

• Author: Leonard W. Levy
• Pages: 2600-2603

Page 2600

On January 8, 1801, twelve days before President JOHN ADAMS appointed JOHN MARSHALL as Chief Justice, a Jeffersonian newspaper reported: " JOHN JAY, after having thru' decay of age become incompetent to discharge the duties of Governor, has been appointed to the sinecure of Chief Justice of the United States. That the Chief Justiceship is a sinecure needs no other evidence than that in one case the duties were discharged by one person who resided at the same time in England, and by another during a year's residence in France." The one in France was OLIVER ELLSWORTH, sent there by President Adams as a special ambassador to negotiate peace. Ellsworth had recently resigned, and Jay, whose appointment as Ellsworth's successor had been confirmed by the Senate, had himself been the first Chief Justice, whom President GEORGE WASHINGTON had sent to England to negotiate a treaty that bore Jay's name. The chief justiceship was no sinecure: although the Supreme Court then met for only two short terms a year, the Justices also served as circuit court judges, and riding circuit was extremely arduous. When Jay was offered the position again, he declined it because of the circuit responsibilities and because the Court had neither "the energy, weight and dignity" necessary for it to support the national government nor "the public confidence and respect."

Jay's judgment was harsh although the Court did have problems, some of its own making. All the Justices were Federalists; their decisions EN BANC or on circuit seemed partisan?pro-Administration, pro-English, or procreditor?and they presided at trials under the infamous Sedition Act, whose constitutionality they affirmed. But the Court was not responsible for most of its difficulties. It had no official reporter (ALEXANDER J. DALLAS'S unofficial reports first appeared in 1798) and the press publicized only a few of the Court's decisions. The public knew little about the Court, and even members of its own bar were unfamiliar with its decisions. Nothing better symbolizes the nation's neglect of the Court than the fact that when the United States government moved to Washington, D.C., in late 1800, the Court had been forgotten. Not only did it lack a building; it had no courtroom. Congress hastily provided a small committee room in the basement of the Senate wing of the Capitol for the Court to meet.

The Court's beginnings were hardly more auspicious, however distinguished its membership. At its first term in February 1790 it had nothing to do except admit attorneys to its bar, and it shortly adjourned. It began as a court without a reporter, litigants, a docket, appeals, or decisions to make. It was chiefly an appellate court whose APPELLATE JURISDICTION scarcely matched the breadth of the JUDICIAL POWER OF THE UNITED STATES stated in Article III. Congress in the JUDICIARY ACT OF 1789 had authorized the Court to review state court decisions that denied claims based on federal law, including the Constitution. Review was not authorized when the state court upheld a claim of federal right. The system of appellate jurisdiction thus permitted the Supreme Court to maintain federal law's supremacy but not its uniform interpretation. The Court's review of civil decisions of the lower federal courts was limited to cases involving more than $2,000 in controversy, and it could not review criminal cases from those courts. Congress had stingily authorized the Court to hear cases in its appellate capacity in order to keep it weak, to prevent centralization of judicial powers, to preserve the relative importance of state courts, and to insulate the Court from many matters that concerned ordinary citizens. For its first two years it heard no cases, and it made no substantive decisions until 1793. Its docket never got crowded. Dallas reported less than seventy cases for the pre-Marshall Court, and fewer than ten percent of them involved constitutional law. The Court was then first a COMMON LAW court, second a court of ADMIRALTY AND MARITIME JURISDICTION.

Although its members were able, the pre-Marshall Court had difficulty attracting and keeping them. When Marshall became Chief Justice, only WILLIAM CUSHING of the original six Justices appointed by Washington remained. Robert H. Harrison, one of the original six, was confirmed but declined appointment, preferring instead the chancellorship of Maryland. JAMES IREDELL accepted Harrison's place, so that the first Court consisted of Chief Justice Jay and Justices Cushing, JOHN BLAIR, JOHN RUTLEDGE, JAMES WILSON, and Iredell. Rutledge performed his circuit duties but had never attended a session of the

Page 2601

Court when he resigned after two years to become chief justice of South Carolina. CHARLES C. PINCKNEY and Edward Rutledge declined appointment to John Rutledge's seat, preferring to serve in their state legislature. THOMAS JOHNSON accepted that seat but resigned it in less than two years because circuit riding was too strenuous. WILLIAM PATERSON succeeded him. The February 1794 term was Jay's last. That he reentered New York...