In conversation with others it has been my observation that most people believe that the United States Supreme Court has always been as it is today, nine justices, hearing only those cases they choose, deciding cases at the appellate level, without political ambition, as the unchallenged arbiters of interpreting the Constitution and devoted to their heavy caseload and their extraordinary impact on the law of the land. Not so.
The federal judiciary is established pursuant to Article III of the Constitution of the United States, the first sentence of which reads:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Two things jump out from Article III. The number of Supreme Court justices is not established at any specific number, and there is no specific provision for other types of federal courts. Less obvious at first blush is that the duties of the Supreme Court are not defined.
The first attempt at defining the federal judiciary came as a result of the Judicial Act of 1789. It established a Supreme Court comprised of six justices. It established thirteen federal district courts and three regional federal circuit courts. The circuit courts were not appellate courts as they are today, but were high trial courts. They would not become appellate courts until the end of the nineteenth century. The only court assumed to have any appellate jurisdiction was the Supreme Court. To insure that Supreme Court Justices remained aware of local opinion and state law, Congress required Justices to travel the circuits, serving as trial court judges when the Supreme Court was not in session. The Act’s principal author, Oliver Ellsworth, would later become Chief Justice of the Supreme Court.
At the time, the Supreme Court was in session twice a year and justices were required to “circuit ride” twice a year. The inconvenience and difficulty of performing those duties prompted America’s first Chief Justice to threaten to resign, resulting in a reduction of the circuit riding requirement to once a year. That congressional mandate remained in effect until 1891.
President George Washington appointed the members of the six person Supreme Court in 1789, with John Jay as the court’s first Chief Justice. When the court convened for the first time, only three of the six justices bothered to attend. John Rutledge, one of the six, never sat with the court, though he was later nominated to be Chief Justice. All six of the initial appointees had served at the Constitutional Convention, and all six were considered “federalists”. To avoid discord, Washington carefully selected the six from different regions of the country. Chief Justice John Jay had been a delegate to the Continental Congress, but resigned in 1776 rather than sign the Declaration of Independence. He would later rejoin the Continental Congress and be elected its president in 1778.
For its first three years, the Supreme Court conducted almost no business other than reviewing the applications of would-be lawyers. Lower court decisions had not yet reached them for review. During those early years, the primary function of the justices was found in their circuit riding capacity as trial judges in the circuit courts.
When the Supreme Court finally took up its appellate role, it caused an immediate uproar with its decision in Chisholm v. Georgia (1793). In what might now be called an “activist” decision, the Court ruled in favor of two individuals from South Carolina in their suit against the State of Georgia over Revolutionary War debts. The State of Georgia was so confident that citizens of one state had no right to sue another state that its lawyers didn’t appear for the hearing before the Supreme Court. The decision was considered so outrageous that it led to the adoption of the Eleventh Amendment in 1798, limiting the power of the judiciary:
“The Judicial power of the United States shall not be construed to extend to any suit…against one of the United States by Citizens of another State…”
In 1794, John Jay, while still sitting as Chief Justice, ran for public office. The election was orchestrated by Alexander Hamilton while Jay was out of the country. Following his election Jay resigned from the court to serve as Governor of New York. Following Jay’s resignation in 1795, President Washington, by recess appointment, named John Rutledge as Chief Justice in August of 1795.
When the Senate reconvened in December of 1795, Rutledge was officially nominated, and became the first Supreme Court nominee to be “Borked”. Rutledge’s service during the recess appointment resulted in a few modest opinions and no particular difficulty. But, Rutledge’s opposition to the Jay Treaty (yes, the same John Jay who had moonlighted as a treaty negotiator while Chief Justice) infuriated George Washington’s own federalists in the Senate. Rutledge’s opposition to the treaty was proffered as evidence of his diminished mental capacity. He was also accused of being an alcoholic. The Senate refused to confirm his nomination.
After an unsuccessful suicide attempt, Rutledge resigned on December 28, 1795. He had been the 31st signer of the Declaration of Independence, served as both president, and later, governor of South Carolina, and had played a prominent role in the Constitutional Convention, arguing against limiting voting rights to landowners, and for slavery. As South Carolina “President”, his resistance to British invasion forces played a key role in America’s success in the Revolutionary War. When Fort Sullivan was threatened by overwhelming British forces, one of his generals recommended withdrawal. Rutledge instructed the fort’s commander, “General Lee wishes you to evacuate the fort. You will not do it without an order from me. I would sooner cut off my hand than write one.” The fort held.
After Rutledge’s rejection by the Senate, Washington approached Patrick Henry who declined to serve. In his stead, Washington nominated Oliver Ellsworth, who accepted and was confirmed.
By 1798, the federalists controlling Congress and the White House under John Adams were taking great umbrage at the criticism of the Jeffersonians who they accused of being influenced, or worse, by French partisans. Though the congressional majority had, just years earlier, voted for the Bill of Rights, including freedom of speech and press, they passed the Sedition Act. The Act made it a federal crime to criticize a government employee, the President or a member of Congress. Contrary to popular belief, the Sedition Act was not ruled unconstitutional; quite the opposite.
In their role as circuit court trial judges, the Justices of the United States Supreme Court presided over numerous trials of those accused under the Sedition Act and were responsible for sending scores to prison. Associate Justice Samuel Chase, who would later be impeached by the House but avoid Senate conviction, was particularly virulent in seeing to the prosecution of the Jeffersonian republicans and shipping them off to serve lengthy jail terms. Chase was also noted for his disdain for democracy, telling a grand jury at one point that “modern doctrines” of “equal liberty and equal rights” would bring about the “sinking of the Constitution into a mobocracy, the worst of all popular governments.”
Following the election of Thomas Jefferson and the routing of the federalists from Congress in the election of 1800, the Sedition Act was allowed to expire. Jefferson issued a blanket pardon to all who had been convicted under the Sedition Act, many of whom were still in prison.
Sources: Wikipedia; ushistory.org; johnjay.net; oyez.org; Constitution of the United States (annotated); and the Supreme Court Historical Society.
Part II will examine the Marshall Court and Court’s role in the lead up to the Civil War.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.