The Activist
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With such scrutiny cast on the question of jurisdiction, one might well expect any clause that expanded the power of the national courts—Section 13, for example—to come under attack. But it was never mentioned.
Debate continued on Monday, and the measure was tabled until September 9. Finally, on September 17, the judiciary bill passed, by a vote of 36–17. Although no complete record of the debates exists—the House reporter often simply wrote “discussion ensued,” or “after desultory discussion”—neither is there any indication that the “mandamus” sentence of Section 13 was questioned. Had Congress had any notion of the importance that this one simple phrase would take on, debate would have been fierce.
That a seemingly innocuous clause turned out to be pivotal is not surprising. What is surprising is that such a flagrant violation of a short and seemingly straightforward Article III escaped the notice of two Houses of Congress during six weeks of furious and often petty debate in which no fewer than eight key delegates to the Philadelphia Convention took part.39 Did it never occur to one of them to protest this unbridled expansion of the Supreme Court’s original jurisdiction or to chastise fellow delegates Ellsworth, Paterson, and Strong for perverting the document that had been so tortuously and painfully produced?
Nor is it credible that such a significant expansion of the Supreme Court’s power simply slipped by everyone. Thus, clearly, either Congress, including all those Philadelphia delegates, thought Section 13 an appropriate expression of legislative power, or they read the clause as not expanding original jurisdiction and not conflicting with the prohibitions of Article III, Section 2. Supporting these latter scenarios is that Ellsworth and Paterson, the bill’s key authors, were both intimate with the proceedings in Philadelphia as well as being first-rate legal scholars. Both would sit on the Supreme Court, Ellsworth as the third chief justice and Paterson as a key associate, and it seems extremely unlikely that these men would knowingly draft a law that violated a Constitution they had been so instrumental in drafting.
The bill authorizing amendments was returned from the Senate to the House on September 24, passed, and sent to President Washington for signature. The same day, the judiciary bill was sent to the president as well.
The combination of tabula rasa and an effective one-party system made the first Congress perhaps the most productive in American history. They chose a site for the national capital, set tariffs to raise revenue, and passed a plethora of laws to organize the new government. The two most far-reaching actions, however, were in plugging the holes in the legal system. The Bill of Rights, of course, is still with us today; and the judiciary act, although tossed about, stayed in force for a century.40
* New York would remain unrepresented until Rufus King presented his credentials on July 25. Philip Schuyler joined the Senate two days later.
PART II
“THE WEAKEST OF THE THREE”
SEVEN
A LONG AND FRUSTRATING RIDE: JAY TAKES THE REINS
REORGANIZATION OF THE GOVERNMENT was very much done on the fly. In April 1789, with the Articles of Confederation defunct, the nation was technically operating under a legal system limited to the specific—and broadly drawn—provisions of the new Constitution. Until the Senate and the House agreed in what manner to provide weight and definition to Article III and passed it on to President Washington for signature, the only judicial posts certain to be filled were some small but indeterminate number of justices to the Supreme Court.*
Still, constitutional vagueness notwithstanding, there was no doubt that chief justice—for there was sure to be one of those—would be a plum job. More than thirty of the fifty delegates to the Convention had been lawyers, and members of the legal profession dominated the new Congress. Not surprisingly, applications for appointment as the highest judicial officer in the land were received almost as soon as the new government was formed. James Wilson, for example, as early as April 21, 1789, wrote an obsequious and almost laughably transparent note to President Washington announcing his fitness, availability, and, most of all, his eagerness for the post.
Aware that lobbying for a position that was supposed to be non-political and impartial might be considered unseemly, Wilson wrote, “A delicacy arising from your situation and character as well as my own has hitherto prevented me from mentioning to your Excellency a subject of much importance to me. Perhaps I should not even now have broken silence but for one consideration. A regard to the dignity of the Government over which you preside will naturally lead you to take care that its honours be in no event exposed to affected indifference or contempt. For this reason, you may well expect that before you nominate any gentleman to an employment (especially one of high trust) you should have it in your power to preclude him, in case of disappointment, from pretending that the nomination was made without his knowledge or consent. Under this view, 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? . . . Your Excellency must relieve me of this dilemma. You must think and act properly on the occasion, without my saying anything on either side of the question.”1
Wilson should have been a fitting and obvious choice, but Washington was faced with considerations that far outweighed the judicial credentials of the first chief justice. For one thing, Wilson’s close association with Robert Morris—he had for some time been Morris’s lawyer—could have presented a risk that Morris would by association gain control of a branch of the government. Morris, although generally a loyal Federalist, reserved his main loyalty for himself, and thus appointing Wilson to head the Court might well have been out of the question on that ground alone.
Wilson was far from the only supplicant. John Rutledge of South Carolina wanted the job desperately. Cleverer than Wilson, Rutledge persuaded friends to bombard Washington with pleas to appoint him rather than make the entreaties personally. Robert Livingston of New York also made little secret that he actively sought the appointment. Alexander Hamilton was rumored to be interested, although running the nation’s finances as head of the treasury was said to hold greater appeal. Any number of lesser lights coveted the position as well, many of them longtime friends or associates of the president.
Washington, whose own political deftness is often underrated, held himself above the fray. He maintained publicly and in letters to associates that the judiciary was a branch of government unlike the other two, and that the Supreme Court therefore had to remain free of any taint of partisanship. Appointments to the bench were to be made on the strength of qualification alone. “Impressed with a conviction that the true administration of justice is the firmest pillar of good government,” he wrote to Edmund Randolph, “I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system. Hence the selection of the fittest characters to expound the laws and dispense justice has been an invariable subject of my anxious concern.”2
Washington was even more nimble with Livingston, whom he had no intention of appointing.* Aware that Livingston enjoyed wide popular support, Washington wrote, “When I accepted of the important trust committed to my charge by my country, I plainly foresaw that the part of my duty that obliged me to nominate persons to office would, in many instances, be the most irksome and unpleasing . . . I was fully determined to keep myself free from every engagement that could embarrass me in discharging this part of my administration. I have therefore declined giving any decisive answer to the numerous applications which have been made to me.”3
While Washington might be able to deflect the ambitions of applicants whom he did not want, finding the man he did want was an operation that required great delicacy. Precisely because the Constitution had been so vague and a federal judiciary was to be such an unknown, the political risks of putting the wrong man in the job were acute. His lofty public remonstrat
ions notwithstanding, the Supreme Court was from the first considered by virtually everyone to be a political body, as much an instrument of policy as an arbiter of federal law. Washington could ill afford a chief justice who would use the Court to stake out his own power base, as Rutledge was almost certain to do, or provide one by proxy, as might Wilson. The president also had to be at least fairly certain that the Court would be an extension of Federalist principles and not an independent body that struck off on its own to thwart the new administration’s key objectives.
Since treaties, for example, fell under the purview of Congress and, by extension, the judiciary, the new Supreme Court might certainly soon be faced with cases arising from outstanding debts owed by American citizens to British creditors. Although payment of these debts had been guaranteed in the Treaty of Paris, there was widespread sentiment in parts of the nation to simply ignore British claims. Courts in many states, particularly in the South, had refused to enforce collection, regardless of anything the treaty might have said, but Washington was determined that these obligations be paid. Default would provide the Crown with justification to also disregard the treaty and maintain forts and garrisons in the Northwest, choking off expansion and trade, to say nothing of providing an ever-present threat of invasion to population centers on the Atlantic seaboard. If Washington was going to be able to compel state courts to adhere to the treaty, a strong federal court system was the most workable option, and the court system, especially in such an ephemeral environment, would likely be a reflection of the man chosen to head it.*
So Washington was faced with finding a man sufficiently strong to do the job, one on whom he could count politically, but also of sufficient prestige and perceived independence not to be seen as simply a tool of the president or Congress. Wilson was not that man, nor was Rutledge, nor Livingston, nor any other of the proffered candidates. Hamilton, temperamentally perfect and a powerhouse, was far too divisive. There was, however, a candidate who seemed perfect and, fortuitously, turned out not only to be available but, in a conversation with the president in August 1789, had indicated that he wanted the job.
Of impeccable character and credentials, John Jay had been president of the Continental Congress, minister to Spain, secretary for foreign affairs in the Confederation, a member of the quartet charged with negotiating peace with England, co-author of the Federalist papers (although few knew that at the time), and a resolute Federalist nonetheless acceptable to George Clinton as well as to Alexander Hamilton. Best of all, Jay, also mentioned as a candidate for secretary of state, was an intimate of Washington’s and shared the president’s view that properly adjudicating British claims against Americans would perhaps be the Court’s most vital initial function.
There were, however, two drawbacks to Jay’s appointment. The first was that, although he had served two years as chief justice of the New York Supreme Court, “his practice as a lawyer had been of short duration.”4 In fact, Jay had not appeared in a courtroom in more than a decade, and his legal credentials were not especially impressive. For him, judicial sensibilities were subordinate to political exigency, which, ironically, made him all the more appealing to Washington.
The second problem was political: during an attempt to negotiate a treaty with Spain in 1785, Jay had aroused the enmity of the Southern states when he had shown himself willing to bargain away navigation rights to the Mississippi for access to some of the more desirable Spanish ports in the Caribbean. When he had presented the deal—in which he had specifically violated his mandate not to surrender rights to the great river—he had been shouted down in Congress and accused of treachery and deceit. A Jay appointment, Washington knew, would signal a tilting to Northern commercial interests—as a Rutledge appointment would do the opposite—and might well set up renewed protests from settlers in the Southwest.
But complaints from backcountry South Carolinians and Virginians were not about to dissuade Washington, and so, on September 24, the day he signed the Judiciary Act of 1789 into law, Washington sent the nomination of John Jay as first chief justice of the Supreme Court to Congress. On the same day, he submitted nominations for the five men who would be Jay’s associates. Rutledge and Wilson were both given consolation prizes, as were two other aspirants to Jay’s job, both distinguished judges, William Cushing of Massachusetts and Robert H. Harrison of Maryland. The fifth associate was Washington’s close friend and fellow Virginian John Blair, a noted legal theorist and chief justice of the Virginia Court of Appeals, who had been a delegate to the Constitutional Convention but had never spoken or served on any of the committees. The geographical spread of the appointees was no accident—in addition to the obvious advantage of a Supreme Court that was representative of the diversity of the nation it served, the circuitriding provision of the Judiciary Act created an almost mandatory requirement that at least one justice live in each of the three delineated circuits. This first complement would allow Jay and Cushing to cover New England, Wilson and Harrison the middle states, and Rutledge and Blair the South, although Blair would be the only justice who would not ride circuit in his home state.*
John Jay
The Senate quickly confirmed all six appointments, and the first step in creating a federal judiciary would have been complete except that four days later, Justice Harrison resigned, preferring to remain in Maryland, where he had just been appointed chancellor. Whether or not the circuitriding requirement contributed to his decision, the speedy resignation of a justice to take what seemed a far less important state office did not portend well for the prestige of the Court. Washington chose not to immediately fill Harrison’s seat and did not do so until the following year, when he appointed James Iredell of North Carolina.5 Rutledge was a bigger problem. Furious at being passed over for chief justice, he simply refused to travel to the North—which he had detested dating back to his days in the Stamp Act Congress in New York in 1765—but nor would he resign his seat. Although he would ride circuit in the Carolinas and Georgia, he would never once appear for a meeting of the full Court in either New York or Philadelphia, until finally he resigned his seat in 1791 to become chief justice in his home state.6
Four months passed until the Court actually met on February 1, 1790, as mandated in the Judiciary Act. The Court had no dedicated chambers, so the initial meeting was held in the second-floor courtroom of the Exchange Building at the foot of Broad Street in New York City.7 The ground floor, ordinarily a public market, was closed for the day to provide proper decorum for the occasion.
George Washington’s letter to John Jay and his Supreme Court associates
The first session of the Supreme Court of the United States was ushered in with great fanfare, but while the courtroom was filled with dignitaries, the bench was not. Only three justices—Jay, Wilson, and Cushing—had showed up for the opening session, although each was bedecked in a black silk robe highlighted in what one observer called “party colors.”* Lacking a quorum or any business to do, it lasted less than ten minutes, Jay then adjourning until the next day when William Blair arrived.
While the second day of the session was more productive than the first— a good deal of administrative business was attended to, including the granting of credentials to a number of lawyers to plead before the Court—the docket remained empty, and so Jay adjourned this meeting quickly as well. Two days later, the first session of the Supreme Court was closed, after which the justices—those who had bothered to show up—were feted at a grand banquet at Fraunces Tavern. From there, Jay and the associates left to ride circuit.
Although the actual travel was tedious, the chief justice’s first circuit experience belied how controversial the semi-annual judicial caravans would become. Whether it be New York, New Haven, Boston, or Portsmouth, New Hampshire, Jay was met by enthusiastic members of the legal community and local dignitaries, lodged at convivial inns, and treated with the adulation that accompanied his personification of another major step in the new republic’s maturation. And whil
e only a handful of cases were brought before the new federal circuit courts, the mere existence of such courts in cities across the nation had fulfilled the founders’ desire to bring justice to the people.
The second session of the Court convened in August 1790, this time with five justices present, lacking Rutledge but including the newly appointed Iredell. Although the docket was once again bare, the first hint of acrimony was injected into the proceedings when Justice Iredell demanded a reconsideration of the circuitriding rules.
While Jay and Cushing, in the northern circuit, traveled between well-settled cities on generally good roads and stayed in comfortable inns, the southern circuit was often little more than wilderness. As the Supreme Court Historical Society described, “After jolting in a stagecoach many hours daily over savage roads of ruts and rocks or helping lift the stagecoach from quagmires of mud, the Justices passed restless nights in crowded way stations. Battered and exhausted by the rigors of travel, Justices often arrived at the circuit courts too late or too sick to hold a session.”8 Iredell also pointed out that just getting to his circuit from New York involved extensive travel, so that between court sessions and the two circuits, he would be forced into almost full-time service. (Rutledge, of course, had found his own solution to the problem.)
Iredell proposed that circuits be rotated, so that each of the three pairs might experience both the comforts of the north and the rigors of the south. Jay demurred. A northern sophisticate to his bones, Jay, who had decided that he did not much like circuitriding anyway, certainly had no intention of bouncing over ruts and staying in primitive inns in the wilds of Georgia. Jay told Iredell that rotation would destroy continuity, since different justices might take different positions on an issue from one session to the next and, exercising the prerogative of his office, declared that justices would be assigned permanently to the various circuits. What Jay and Iredell did agree on, along with the three other justices present, was that circuitriding was a hare-brained idea. Jay went so far as to draft a joint letter to Congress decrying the practice and even intimating that the overlap of circuit courts on the Supreme Court violated the Constitution, but the letter was never posted. The question of circuitriding was shelved but hardly resolved.