Out of Order

by Sandra Day O'Connor

  After Rutledge’s rejection by the Senate, President Washington nominated sitting Justice William Cushing to fill the Chief Justice’s slot, in January 1796.19 Cushing was quickly confirmed as the Chief.20 His frail health, however, forced him to return the commission to the President a mere week later.21 The President next turned to Oliver Ellsworth, who was confirmed in March of that year.22 Ellsworth’s tenure was also short-lived. Less than four years into his tenure, Ellsworth was dispatched as a commissioner to France to renegotiate a treaty on behalf of the United States.23

  In 1800, President John Adams nominated John Jay to return to the Court, and the Senate confirmed him. But it soon turned out that Jay himself didn’t want the job back.24 Jay declined the post, citing the Court’s lack of “energy, weight, and dignity” and his own health problems. Finally, in 1801, his last months in office, Adams nominated John Marshall as Chief Justice. Marshall was unanimously confirmed and served on the Court for thirty-four history-making years.

  Getting Justices to stay put was not the only problem the early Court faced. Early Court records were rife with textual errors, corrections, and revisions. The second Clerk of the Court, Samuel Bayard, did his best to keep drafts of orders and motions, as well as rough minutes, and to maintain a docket book.25 But Bayard was not even required to reside in the capital. When Washington selected him to prosecute admiralty claims on behalf of the United States in London, off he went for nearly five years. From November 1794 until spring 1798, then, the Justices were without a Clerk of Court.26

  As for Court Reporters, written opinions were not even required until 1834, during President Andrew Jackson’s administration and while Marshall was still Chief Justice.27 In 1791, when the Court moved from New York to Philadelphia, Alexander James Dallas, a local lawyer, simply showed up one day and appointed himself the first Supreme Court Reporter. Dallas reported cases for personal gain and professional reputation. Indeed, Dallas founded the enterprise of Supreme Court reports almost inadvertently. His main interest lay with state decisions; his first volume was titled Report of Cases Ruled and Adjudged in the Courts of Pennsylvania, Before and Since the Revolution. Pennsylvania cases made up his entire first volume of published reports and over half his second. It was only in his second volume that he began adding the opinions of the Supreme Court, which was by then sitting in Philadelphia. In the English tradition, Dallas arranged for publication of the reports and made his money by selling the publications to the public.28

  Dallas’s efforts were admirable, but there were nonetheless serious flaws in his reporting. The lack of institutional precedent no doubt contributed to the uneven quality of the reports. Between 1790 and 1800, a number of important cases went unreported.29 He reported decisions in only about sixty cases.30 Some historians believe Dallas failed to report as many as one-third of the decisions rendered during the first decade of the Court. He was also extremely slow. His last volume didn’t appear until 1807, seven years after his tenure as Reporter ended.31 On top of that, his reports contained many inaccuracies.32 In fairness, however, Dallas doesn’t deserve all the blame for these shortcomings. The Justices were partially responsible for the gaps in his reports, because they failed to submit written opinions in most cases.33

  Dallas’s successor, William Cranch, had a somewhat smoother ride. In 1802, Cranch undertook to report and publish the Supreme Court decisions from 1801 to 1815. Cranch reportedly stated that he was “rescued from much anxiety as well as responsibility by the practice which the court had adapted of reducing their opinions to writing in all cases of difficulty or importance.”34 Cranch simultaneously served as a judge on the District of Columbia Circuit Court, however, and in 1817, his judicial duties finally led him to resign as Supreme Court Reporter.

  It was in 1817 that the office of the Reporter finally became official. Congress authorized the Court to appoint a salaried Reporter. His name was Henry Wheaton, and his salary was one thousand dollars a year.35

  HOW DIFFERENT THINGS ARE today. We expect the Justices to serve for decades on the Court. Justices don’t have to worry about traveling on horseback through life-threatening floods and ice storms to get to work each day. The Court now occupies one of the most impressive buildings in Washington. The Clerk’s and Reporter’s offices run like well-oiled machines. This is good not only for the Justices, but also for our democracy.

  As the history of the Court—especially of its first decade—demonstrates, it was not always this way. One would not envy the judiciary in those early days, when the Supreme Court Justices barely had any cases and were forced to ride circuit and to hold court in a succession of temporary quarters without a well-organized clerical staff or regular court Reporters. We owe a great deal to the long-suffering souls who laid the foundation for the venerable institution we have today.

  In our common-law system, where the law is expounded through case-by-case adjudication, it is essential to have competent Reporters. As Roscoe Pound said: “Ours is a technique of utilizing recorded judicial experience.… Even when we have written texts, as on American constitutional law, we proceed at once to look at them through the spectacles of the common law, and our method is not one of development of the text but of development of judicially found grounds of decision which, if they began in the text, have since led an independent existence.”36

  It helps to have an atmosphere that attracts the best and brightest among our highly educated class of professional lawyers—this means, among other things, salaries that cannot be reduced, and, yes, a permanent building. It helps to have people who are well trained and who are willing to spend years in the same line of work, thinking about the same sorts of questions until they get really good at answering them in an atmosphere insulated, as far as possible, from political pressures. I was a Justice for over a quarter of a century, and after hearing a few thousand cases, I think I began to get the hang of it. Moreover, because I long ago stopped caring what politicians and the media say about me, I was also better able to make the hard decisions that might make my powerful neighbors mad.

  Those who helped our Court to run smoothly and professionally, in the long run helped create a culture in the early Republic where, by and large, the Court’s judgments were enforced by those other branches of government, even when those other branches were the losers. The Supreme Court is only as effective as people think it is. When in 1832 the Supreme Court decided Worcester v. Georgia37 —a case in which the Court took sides with the Cherokees against the state of Georgia—Georgia simply ignored the Court’s ruling. President Andrew Jackson is famously said to have challenged the Court to come enforce its ruling itself! He probably never said that,38 but the implication, the idea is sound: The Court’s only weapon is its moral authority. This moral authority of the Supreme Court was a long time in the making, and once it became established, it built on itself little by little.

  This is an accomplishment that entitles John Marshall to his place together with such figures as Hammurabi, Grotius, and Confucius in the frieze of great lawgivers that frames the courtroom where the Supreme Court Justices sit. Marshall and his contemporaries helped fulfill President Washington’s vision of the Court and build the “pillar upon which our national Government [rests].”39

  ITINERANT JUSTICE

  Riding Circuit

  IN JUNE 1798, DURING THE JOHN ADAMS ADMINISTRATION, Supreme Court Justice James Iredell wrote a letter to Secretary of State Timothy Pickering: “I very unfortunately was prevented [from] reaching Savannah,” wrote Justice Iredell, “by one of the greatest floods of rain ever known in this State, which met me on my Journey.” “[This flood],” Iredell continued, “rendered it impossible for me to proceed any considerable distance, all the bridges almost being broke up in every direction.… I made every effort in my power, and was nearly drowned in the attempt, but was obliged at length absolutely to desist.…”1 Iredell was explaining his failure to reach Savannah, Georgia, where he was slated to preside over the federal court for the South
ern Circuit. To add insult to injury, the local papers soon took Justice Iredell to task for his supposedly negligent failure to attend.

  Few people realize that, for much of the Supreme Court’s first century, one of the Justices’ primary duties was to serve as roving trial judges in the lower federal courts. From 1789 to 1891, the Justices were required by law to “ride circuit.” They traveled thousands of miles each year to preside over trials and intermediate appeals all over the country. In fact, the Justices spent a lot more time riding circuit than they did hearing cases at the Supreme Court.

  It’s just remarkable, if you think about it. Just imagine the nine justices today running around the country, holding court from Boston to Baton Rouge. And then going back to Washington to hear appeals from their own decisions!

  The history of circuit-riding is a window on both the living conditions and many of the great events of the founding era. And it turns out that we can learn a lot from the century-long debate over circuit-riding—about changes in the Supreme Court’s role over time and about the enduring value of bringing the Court to the people.

  ARTICLE III OF THE Constitution vests the “judicial Power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Today, of course, we have a three-tier system of federal courts. There are the district courts, which are the federal trial courts. Then there are the U.S. Courts of Appeals, which are the intermediate appellate courts. And, finally, there’s the Supreme Court—which has the proverbial last word.

  But for the first eleven months of the United States’ existence, the country had no federal judiciary at all. It wasn’t until the Judiciary Act of 1789 that Congress first established the federal courts. The 1789 act set the number of Supreme Court Justices at six. It created one federal district court for each of the states in the Union — each to be presided over by a single district judge. And most important, the act established three “circuit” courts—covering the eastern, middle, and southern regions of the country, respectively.

  But, lest there be any confusion, the circuit courts of that era were nothing like today’s U.S. Courts of Appeals, which are also designated by circuit. The circuit courts created in 1789—and which continued to exist in one form or another for the next 120 years—were primarily trial courts. They had original jurisdiction over major federal criminal cases, meaning that such cases could start in the circuit courts rather than reaching them only on appeal. And, together with the district courts, they had concurrent jurisdiction over lesser criminal cases and most civil trials. The circuit courts’ appellate role, by contrast, was rather limited.

  Perhaps more surprising, the 1789 act did not provide for judges whose job was exclusively to sit on these new circuit courts. Instead, the six Justices of the Supreme Court and the district judges were given double duty as circuit court judges. In each of the three new circuits, two Justices would be assigned to “ride circuit” twice a year—holding court together with the district judge in each state. That was no small task, for the territory to be covered was vast, the travel grueling, and the accommodations far from commodious.

  What accounts for Congress’s decision to give the Justices of the Supreme Court a dual role as itinerant trial judges? Good old-fashioned Yankee frugality was certainly one big reason. The new republic was cash poor and heavily indebted, and Congress no doubt saw circuit-riding as a way to get two courts for the price of one. This penny-pinching wasn’t altogether unreasonable. As it turned out, the Justices’ duties at the Supreme Court itself fell far short of a full-time job at first. The Court’s business was minimal initially. It decided no more than sixty cases in its first ten years. That’s compared with nearly a hundred each year today!

  But pecuniary concerns certainly weren’t the only reason for circuit-riding. From the beginning, circuit-riding was viewed as a vital means of bringing the Supreme Court to the people. When Congress passed the 1789 act, the United States was less than a year old. In many states, the Constitution had been ratified by only the narrowest of margins. And the creation of a federal judiciary had been one of the most contentious aspects of the new system. In short, the new republic was still on pretty shaky ground. There was a lot of work to be done if her founding charter—and her federal courts—were to earn the trust and respect of her citizens.

  Many in the founding generation thought circuit-riding would aid in this endeavor. By assigning the Justices of the Supreme Court a central role in the circuit courts, the supporters of circuit-riding hoped to enhance the legitimacy of the lower federal courts.

  First of all, the Justices’ participation was supposed to improve the quality and uniformity of lower-court decision-making. The Supreme Court would be present—in living color, so to speak—to keep the new federal courts all across the country in line. Circuit-riding was also meant to make the lower courts’ decisions more final. After all, how important is it to take your appeal to the Supreme Court itself, when a Supreme Court Justice has already overseen your trial? As Senator William Paterson of New Jersey put it in 1789, circuit-riding allowed the Justices to “meet every citizen in his [the citizen’s] own State—not drag him 800 miles [on] an appeal.”2

  Perhaps most important, circuit-riding made the Justices ambassadors of the new national government. Nowadays, we see the President and other national officials on television daily, and the federal government maintains a presence throughout the country. But during the founding era, in most areas of the country the circuit-riding Justices were the only representatives of the central government with whom the public had regular contact. In other words, it was the Justices, through their connections with lawyers, litigants, and leaders across the country, who gave the federal government a human face. And it was a pretty good face, too! Men like Chief Justice John Marshall clearly had the power to inspire confidence in the new republic.

  In the course of their circuit-riding duties, the Justices campaigned vigorously for the new Constitution and the new national government. They did so most famously through their grand jury charges. One of the Justices’ duties upon convening the circuit court was to impanel a grand jury to hear criminal charges. The Justices would then deliver a “charge” to the jury—an often lengthy oration that was part legal tutorial, part moral sermon, and part political speech. Imagine the setting. In those days, grand juries were hand-selected, so the Justices were speaking directly to the leaders of the community. And holding court was a big public event, so the crowds were listening and the Justices’ speeches were often published in local newspapers.

  The Justices did instruct the jurors on the law, of course. But what’s so remarkable about these jury charges, to our modern ears, is their overtly political character. I sometimes tell audiences that I like to give speeches about history because it’s less dangerous than talking about the present. Well, the early Justices were much braver than I! Throughout the country’s tempestuous first decades, they used their jury charges to address the great political and legal controversies of the day. Indeed, the Justices sometimes went too far. It was an incendiary grand jury charge that led to the only impeachment of a Supreme Court Justice—Samuel Chase—in our country’s history; Chase had charged a Baltimore grand jury that Congress’s repeal of the Judiciary Act of 1801 would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”3 But the Justices also consistently—and often eloquently—advocated the importance of a strong central government in securing the rights and liberties of the people. Citizens from all across the country listened to those speeches, and I suspect the effect on public opinion was significant.

  * * *

  WHATEVER THE PERCEIVED VIRTUES of circuit-riding, it presented severe problems from the beginning. It imposed a crushing burden on the Justices of the Supreme Court. Whereas the Justices spent only six weeks of each year hearing cases at the Supreme Court itself, it took many of them six month
s to ride the circuits. During this time, most were separated from their families. They traveled by horse and carriage over rough roads and through foul weather, for thousands of miles each year. Most stayed in taverns while on the road, and they were sometimes forced to share rooms with unsavory characters. Astonishingly, the Justices paid the entire expense of their travels out of their own meager salaries.

  The hardships were greatest for those assigned to the vast and rustic Southern Circuit, which covered Georgia and the Carolinas. Justice James Iredell of North Carolina was relegated to this duty for many years. His letters to his wife, Hannah, tell of the perils and pains of the road. In one letter from Granville County, North Carolina, in 1791, Justice Iredell lamented that the “accommodations were in some places very bad,” complaining of “a very rascally house” where he was “obliged to put up … a parcel of worthless young Fellows … sitting up drinking gaming & cursing and swearing all night.”4 Two months later, he wrote from New Bern, North Carolina, to tell Hannah that he had been robbed by a “Scoundrel” on the road who had “unstrapped my Portmanteau from behind the Chair.”5 The following April, he wrote from Savannah, Georgia, that he had been thrown off by his horse and run over by a wheel of the carriage, leaving his leg “in so much pain” that he was obliged to stay “very inconveniently at a house on the road.”6 In April 1798, from Williamston, North Carolina, he described his treacherous crossing of a “very long Swamp that had a most formidable appearance,” punctuated by very deep holes where a bridge had collapsed.7 And I thought the Washington, D.C., traffic was dangerous! I must say, it is truly humbling to consider the extraordinary sacrifices these early Justices and their families made for our country.