The First Supreme Court

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Origins. As first president of the United States, George Washington appointed the entire membership of the Supreme Court, but he had to wait for Congress to decide, among other things, how many judges would sit on the Court. Sen. Oliver Ellsworth of Connecticut (later chief justice) drafted the Judiciary Act of 1789 providing for six judges on the Supreme Court. Washington signed the bill on 24 September 1789 and on that same day sent to the Senate the names of six men to hold the highest judicial positions in the new republic. The president wrote: “Impressed with a conviction that the due administration of justice is the firmest pillar of good government, I have considered the first arrangement of the Judicial department as essential to the happiness of our Country, and to the stability of its political system.” Of the six men nominated by Washington, one (Robert Harrison of Maryland) declined appointment. The Senate

confirmed the others on 26 September: Associate Justices John Rutledge of South Carolina, William Cushing of Massachusetts, James Wilson of Pennsylvania, John Blair of Virginia, and Chief Justice John Jay of New York. James Iredell of North Carolina would fill the remaining position upon his confirmation on 10 February 1790. Washington understood the need to establish an immediate sense of fairness and balance on the Supreme Court. His appointment of three northern and three southern justices reflected a wise desire to put regional concerns at ease during the first days of the new government.

The Justices. The first members of the Supreme Court were very different men, chosen for their reputations as good lawyers and solid Federalists. Chief Justice Jay may have recalled his own words, in Federalist, number 3, that “once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it.” His colleagues on the bench were certainly among the most distinguished men of their times. John Blair of Virginia came from a family steeped in public service. Blair was one of the small number of American lawyers who could lay claim to the distinction of having been educated in the law at London’s Middle Temple. Blair’s early years in public service included participation in the formulation of a new Virginia state constitution and reform of the judicial system. He was a leading jurist in Virginia and participated as a delegate to the Constitutional Convention in 1787. His South Carolina colleague, John Rutledge, also studied at London’s Middle Temple. Rutledge attended the Constitutional Convention and, for a brief period prior to ratification by his native state, actually held the title of President of the Republic of South Carolina. At the time of his appointment to the Supreme Court he was chief justice of South Carolina’s Court of Common Pleas. Trained at Harvard University, William Cushing became a Massachusetts state court judge when he was selected to replace his father on the bench. Cushing rose to the position of chief justice of the state’s highest court and may best be known for his charge to a Massachusetts jury that slavery was unconstitutional in that state. He was fifty-seven years of age when selected by Washington for national service. Two members of the first Supreme Court were foreign-born. Pennsylvania’s James Wilson came to America in 1765 as an emigrant from Scotland and was a signer of the Declaration of Independence as well as a member of the Constitutional Convention. James Iredell was born in 1757 in Sussex County, England. Poverty compelled family members to send him to the colonies to work in the North Carolina port town of Edenton. Iredell studied law while serving as collector of port duties and found himself increasingly drawn to public affairs and the movement toward independence. In 1777, when the North Carolina assembly created a state judicial system, Iredell was chosen to serve as a superior court judge. He was appointed Attorney General of North Carolina in 1779 and was a highly regarded jurist when selected for service by Washington. The president explained his appointment of Iredell to the Supreme Court by noting “the reputation he sustains for abilities, legal knowledge and respectability of character.”

ORDER IN THE COURT

The Supreme Court in its first years behaved more like a British court than the Court we know today. The judges wore powdered wigs and elaborate scarlet and ermine robes, a practice taken directly from English custom. Each judge wrote a separate opinion on each case brought before the Court. This practice of separate opinions diluted the forcefulness of decisions. Deciding which opinion had more weight was difficult to assess, as was interpreting the meaning of subtle differences in concurring opinions. Too many judicial voices left a confused and weak legacy.

John Marshall, who served as chief justice from 1801 to 1835, helped the Court move toward a more American way of behavior. Marshall set an example by wearing a simple black robe in the fashion of the judges of the Virginia Court of Appeals. He also saw that the power of the Court lay in its speaking forcefully with one voice. From 1801 to 1805 Marshall wrote the sole opinion of the Court for twenty-six cases. The unanimity of the Court was broken when President Thomas Jefferson’s first appointment, William Johnson of South Carolina, joined the Court in February 1805. Johnson was not awed by his colleagues (in a letter to Jefferson he referred to Justice William Cushing as “incompetent’’ and Justice William Paterson as “a slow man”) and asserted his independence frequently.

There had always been dissents on the Court, beginning with Judge James Iredell’s opinions in Georgia v. Brailsford and Chisholm v. Georgia in 1793. Johnson, however, raised dissent to new heights during his twenty-eight years on the Supreme Court, delivering thirty-three dissenting opinions and twenty-four separate concurring opinions. Yet despite his strong and steady habit of writing separate opinions, Johnson could not break Marshall’s hold on the Court. Marshall enforced the power of the opinion of the Court by writing almost half of the one thousand opinions handed down by the Court during his tenure as chief justice. Marshall’s power was so great that Jefferson wrote to President James Madison on 25 May 1810, “It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall.”

Source: Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York & Oxford: Oxford University Press, 1992).

Early Years. The first meeting of the Supreme Court on 1 February 1790 ended quickly because a quorum was not present. The next day, at New York’s Federal Hall building, Chief Justice John Jay was joined by Associate Justices Wilson, Cushing, and Blair. In recognition of the importance of the occasion, many leading citizens of New York and members of Congress attended the service to observe the reading of commissions of the justices and the administration of oaths of office by Attorney General Edmund Randolph. The “first” Supreme Court ended when John Rutledge resigned on 5 March 1791 to become chief justice of the South Carolina court. George Washington appointed four more men to the Supreme Court during his presidency, including the second chief justice, the same John Rutledge, who was not confirmed by the Senate, and Oliver Ellsworth, the third chief justice, who was confirmed on 4 March 1796. For its first years the justices waited for cases to find their way to the Supreme Court for resolution. It was a slow process, since most legal disputes were brought and resolved at the state level. The full and proper role of the Supreme Court was unknown and untested, and service on the Court was viewed as a dubious honor given the limited caseload and the unusual rigors of the additional duties of each justice as a circuit court judge.