United States Constitution called for a Supreme Court
and a federal judiciary, but left it to Congress to
spell out the details. Congress did so in the Judiciary
Act of 1789. Connecticut's Oliver Ellsworth - later
to serve four years as Chief Justice - led the drafting
in committee. The law created 13 district courts in
principal cities, with one judge apiece, and three circuit
courts to cover the other areas of the eastern, middle
and southern United States. Above these it set a Supreme
Court, with a Chief Justice and five Associate Justices,
as the only court of appeals.
For the first Chief Justice, President George Washington
picked John Jay, New-York-born statesman and diplomat.
The President weighed sectional jealousies and personal
ability in selecting Associate Justices - John Blair
of Virginia, William Cushing of Massachusetts, James
Wilson of Pennsylvania, James Iredell of North Carolina,
and John Rutledge of South Carolina. All had helped
establish the Constitution.
But only three of the Justices had reached New York,
a temporary capital city, in 1790, when the Court convened
for the first time. Required by law to sit twice a year,
it began its first term with a crowded courtroom and
an empty docket. Appeals from lower tribunals came slowly;
for its first three years the Court had almost no business
Spectators at early sessions admired "the elegance,
gravity, and neatness" of Justices' robes. But
when Cushing walked along New York streets in the full-bottom
professional wig of an English judge, little boys trailed
after him and a sailor called, "My eye! What a
wig!"Cushing never wore it again.
In 1791, the Court joined Congress and the President
in Philadelphia; it heard discussions of lawyers' qualifications
but little else. Still, other duties exhausted the Justices.
The Judiciary Act of 1789 required them to journey twice
a year to distant parts of the country and preside over
circuit courts. For decades they would grumble, and
hope Congress would change this system; but Congress
meant to keep them aware of local opinion and state
Stagecoaches jolted the Justices from city to city.
Sometimes they spent 19 hours a day on the road. North
of Boston and in the South, roads turned into trails.
Justice Iredell, struggling around the Carolinas and
Georgia on circuit, and hurrying to Philadelphia twice
a year as well, led the life of a traveling postboy.
Finding his duties "in a degree intolerable,"
Jay almost resigned. Congress relented a little in 1793;
one circuit trip a year would be enough.
negotiating a treaty with the British that elicited
few concessions, Justice John Jay was burned in
effigy by angry mobs in several cities ~
of the New York State Historical Association,
had to endure hazardous conditions and long stretches
away from their families while traveling to perform
their circuit duties ~
Library of Congress
Sensitive issues appeared in some of the Court's first
cases. Its decision in Chisholm v. Georgia
shocked the country. During the Revolution, Georgia
had seized property from men loyal to the Crown. With
a pre-Revolution claim on such an estate, two South
Carolinians asked the Court to hear their suit against
Georgia. It agreed, saying the Constitution gave it
power to try such cases. But when the day for argument
came in 1793, Georgia's lawyers did not appear. The
Court gave its decision anyway, in favor of the South
Georgia raged; other states took alarm. They were trying
to untangle finances still snarled from the war. If
they had to pay old debts to "Tories" they
might be ruined. They adopted the Eleventh Amendment,
forbidding any federal court to try a lawsuit against
another state by citizens of some other state. Thus
the people overruled the Supreme Court for the first
time, and established a far-reaching precedent of their
own. They would give the ultimate decision on constitutional
War between Britain and France brought two more basic
precedents. President Washington was working desperately
to keep the United States neutral and safe; he sent
the Court 29 questions on international law and treaties,
and begged for advice. The Justices politely but flatly
refused to help. Under the Constitution, they said,
they could not share executive powers and duties, or
issue advisory opinions.
To this day, the Supreme Court will not give advice;
it speaks only on the specific cases that come before
But by its decision in Glass v. Sloop Betsey, in 1794, the Court did defend neutral rights and national
Defying the President's neutrality proclamation,
French privateers were bringing captured ships into
American ports. There French consuls decided if the
ships were to be kept as lawful prize.
had American cargo aboard when the French raider Citizen
Genet caught her
at sea and took her to Baltimore. Alexander S. Glass,
owner of a share of the cargo, filed suit for his goods,
but the district court in Maryland ruled that it could
not even hear such cases.
With the prestige of the country at stake, the
government quickly appealed to the Supreme Court. Try
the case and give satisfaction, the Justices told the
Maryland court; foreign consuls would not decide American
claims. Europe heard this decision; and the United States
became, as Washington hoped, "more respectable."
Old debts and grudges were troubling relations between
the United States and Great Britain. President Washington
sent Chief Justice Jay to London as a special minister
to settle the quarrels, and Jay negotiated a treaty.
When he returned, New York elected him Governor, and
he resigned from the Court.
of Congress |
The American ship "Planter" beat off a
French privateer during this 1799 battle. The Supreme
Court had ruled in 1794 that American courts would
decide all cases involving prize ships within the
American domain ~