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Document Outline
First Terms
Court, Congress, and President
Treaties and Taxes
The Adams Years

On September 24, 1789, President George Washington signed the Judiciary Act into law and sent the Senate his nominations of six men to serve as the first members of the Supreme Court. One of his nominees declined; another accepted but never attended a formal session; and John Jay, the first chief justice, spent much of his tenure abroad, engaged in diplomatic duties, and resigned after six years to become governor of New York. All of Washington′s original selections had been active participants in the founding of the new government:

  • Chief Justice John Jay of New York coauthored the Federalist Papers with Hamilton and James Madison.

  • John Rutledge of South Carolina was a member of the Constitutional Convention.

  • Robert Hanson Harrison of Maryland, who declined the post, become chancellor of Maryland.

  • John Blair Jr. of Virginia was a member of the Constitutional Convention and a leader in the effort for Virginia to ratify the new national charter.

  • James Wilson of Pennsylvania was a signer of the Declaration of Independence, a member of the Constitutional Convention, and a leader in Pennsylvania′s ratification of the Constitution.

  • William Cushing of Massachusetts was a state judge and leader of the state ratification effort.

After Harrison′s refusal, Washington selected James Iredell of North Carolina for the fifth associate justice seat. Iredell had led the initially unsuccessful effort to win North Carolina′s vote in favor of the Constitution. Confirmation of the original nominees came within two days, on September 26. Iredell was nominated early the next year on February 9, 1790, and confirmed the next day. [17] The tenure of five of the original members was brief. Jay resigned in 1795; and the Court had two more chief justices within its first decade. Rutledge resigned in 1791 without having attended a formal session of the full Court. Blair, after several years of irregular attendance, resigned in 1796 because of poor health. Wilson died in 1798. Iredell, the only member of the first Court to move his family to New York, the new nation′s capital, resigned in 1799. [18] Cushing alone served into the nineteenth century, remaining on the Court for twenty-one years, until his death in 1810.

First Terms

“The status of the federal judiciary in the 1790s,” wrote political scientist Robert G. McCloskey, “was ambiguous and … comparatively minor… . The paramount governmental tasks were legislative and executive.” [19] The record of the Supreme Court′s first decade bears out that statement. Only three of the six justices were present for the Court′s opening session February 1, 1790. Jay, Wilson, and Cushing, wearing robes and, at least in Cushing′s case, a wig, met briefly in the Royal Exchange Building in New York. By February 2 Blair had arrived, making the quorum needed for transacting business. There was no business, however, aside from organizational matters, chief among which was the appointment of a clerk. After several days of admitting attorneys to practice before it, the Court adjourned its first term on February 10, 1790. The second term lasted two days, August 2 and 3, 1790. Iredell, confirmed in February, was present.

In 1791 the capital and the Court moved to Philadelphia, where the Court shared, with the mayor′s court, a room in City Hall. No cases were decided by the Court in 1791 or 1792. The Court met in Philadelphia until 1800. Three times—in 1793, 1794, and 1797—it was forced by epidemics of yellow fever to cancel its August term. [20] In 1791 Justice Rutledge resigned to take a state judgeship, and two of the men offered his seat declined, preferring to retain their seats in state legislatures. [21] President Washington then selected Thomas Johnson of Maryland, one of the Court′s oldest members. Johnson held the seat only fourteen months. In 1792 Chief Justice Jay, who described his Court post as “intolerable,” [22] campaigned from the bench to be governor of New York. He did not win.

On February 18, 1793, the Court announced its decision in Chisholm v. Georgia, its first major case. [23] Reading Article III literally, in Chisholm the Court upheld the right of citizens of one state, South Carolina, to bring original suits in the Supreme Court against another state, Georgia. The vote of the Court was 4–1, with Iredell dissenting. Each justice announced his opinion orally. The states were shocked, seeing in this decision the potential for their economic ruin. Within five years, Chisholm was overturned through legislation, and early in 1798 the Eleventh Amendment was ratified, declaring that states could not be sued, without their consent, in federal courts by citizens of another state.

The Royal Exchange, New York City, first home of the U.S. Supreme Court. (Source: Collection of the Supreme Court of the United States.)

Despite the lack of many notable decisions during these first years, the justices found themselves quite busy—and rather unhappy—with the demands of their duties as circuit judges. For a full century, the justices worked to persuade Congress to abolish this role, which fell to the justices because the Judiciary Act of 1789 created no separate set of judges for the federal circuit courts. Instead, the act provided that Supreme Court justices would travel to hold circuit court where and when necessary. This aspect of judicial duty, although onerous, served an important function in the new nation. Historian Charles Warren notes that “it was … almost entirely through their contact with the judges sitting in the circuit courts that the people of the country became acquainted with this new institution, the federal judiciary.” [24] The distances the justices were required to travel were long, conditions were difficult, and questions were raised about the propriety of the justices participating in cases at the circuit level that might later be reviewed by the Supreme Court. As early as 1790 Jay asked Congress to remove this burden. Congress responded with minor changes in 1793. The Judiciary Act of 1801 (which was quickly repealed) temporarily abolished the duty, but until late in the nineteenth century the requirement that justices fill this function remained on the statute books. [25]

Court, Congress, and President

During its first decade, the Supreme Court made clear its character as a purely judicial branch, declining to perform nonjudicial functions assigned by Congress or to issue advisory opinions in response to executive queries. In 1792 Congress gave circuit courts the job of ruling on claims of disabled pensioners. Justices Iredell, Blair, and Wilson, sitting as circuit judges, refused to do so, declaring that Congress had overstepped its bounds by ordering them to undertake such nonjudicial responsibilities. As a result of their protest, Congress amended the pension law. [26] In 1793 President Washington asked the Court for advice on certain questions of foreign policy, neutrality, and treaty law. The justices politely declined, citing “the lines of separation, drawn by the Constitution between the three departments of the government” and “our being Judges of a Court in the last resort.” With this reply, the Court established its policy of issuing no advisory opinions. [27] As Julius Goebel Jr. notes in summarizing the Court′s first years, “it left the formulation of policy to the branches of government where it conceived such belonged.” [28]

In March 1793, Justice Johnson resigned and was replaced by William Paterson of New Jersey, one of the two senators who had been primarily responsible for drafting and enacting the Judiciary Act of 1789. The next year the Court heard Georgia v. Brailsford (1794). [29] This case was one of a handful tried before the Court by a jury, [30] and it was the last major case in which Jay participated. The Court rejected the assertion that a foreign country had the right—independent of any treaty or other legal guarantee—to set up a prize court in the United States to decide the disposition of captured vessels. [31]

The Supreme Court met from late 1791 to August 15, 1800, in Old City Hall in Philadelphia, Pennsylvania. (Source: Library of Congress.)

In April 1794 Jay accepted an appointment as special ambassador to England. After concluding a treaty of “amity, commerce, and navigation”—Jay′s Treaty—with Britain, he resigned his judgeship in June 1795 to become governor of New York. John Rutledge of South Carolina, the absentee justice of the Court′s first terms, was nominated by President Washington—at Rutledge′s suggestion—to succeed Jay as chief justice. Appointed while the Senate was in recess in 1795, Rutledge presided over the Court′s August 1795 term. In a 10–14 vote in December, however, the Senate refused to confirm him based on reports of his criticism of Jay′s Treaty and on rumors of his mental instability, which Rutledge gave credibility by attempting suicide after his Senate rejection. Washington, early in 1796, then named Cushing, the senior justice, to lead the Court. Although he was confirmed, Cushing declined the post on the basis that at sixty-four he was too old. He did, however, serve for fourteen more years. Washington next offered the post of chief justice to Sen. Oliver Ellsworth of Connecticut, who, with Paterson, had drafted the Judiciary Act. Ellsworth was nominated March 3, 1796, confirmed 21–1 the following day, and took his seat March 8.

Treaties and Taxes

Without Ellsworth, who was sworn in too late to take part, the Court during the February 1796 term decided the two most significant cases of the decade—the treaty case of Ware v. Hylton and the tax case of Hylton v. United States. In Ware v. Hylton the Court established the supremacy of federal treaty provisions over conflicting state laws. A Virginia law that allowed the confiscation—or payment in depreciated currency—of debts owed by Virginians to British subjects was invalid, held the justices, because it conflicted with provisions of the peace treaty with Britain, which ensured the collection of such debts. [32] A future chief justice, John Marshall, argued Ware v. Hylton in what was apparently his only appearance as an advocate before the Court. He lost the case.

John Jay (Source: National Portrait Gallery, Smithsonian Institution/Art Resource, NY.)

Hylton v. United States brought to the Court the first clear challenge to an act of Congress as unconstitutional. [33] There was no debate among the justices over the Court′s power to rule on that point, as each of the sitting justices—while on circuit duty—had indicated his belief that federal courts were empowered to resolve such challenges. [34] Congress had imposed a tax on carriages. The tax was challenged as a direct tax, which the Constitution required be apportioned among the states by population. The definition of “direct tax” was unclear, but the Court declared that the carriage tax was not a direct tax and therefore was not subject to the apportionment requirement. The Court said that direct taxes were only those on land and on individuals, a definition that stood for a century, until its repudiation by the Court in 1895. [35]

A new member of the Court took part in these two decisions—Samuel Chase of Maryland. Chase, a political maverick, became the only justice in history to be impeached in the House of Representatives and tried by the Senate. He was Washington′s surprise choice to fill the seat left vacant by the resignation, in mid-1795, of Justice Blair. A signer of the Declaration of Independence, Chase had opposed ratification of the Constitution, arguing that it was an undemocratic document. Nominated and confirmed by a voice vote in January 1796, he took his seat as the February 1796 term began and voted with the majority in the tax and treaty cases. Chase and Ellsworth were the last Washington appointments to the Court. With Cushing and Paterson, Chase served on the Court until his death in 1811.

The Adams Years

During the administration of John Adams, the Court issued one major decision, declaring in Calder v. Bull (1798) that the constitutional ban on ex post facto laws applied only to criminal, not civil, laws. [36] Few other decisions of lasting significance were announced during the 1797–1801 terms, but with the deaths of Justices Wilson and Iredell, Adams had the opportunity to fill two seats on the Court. To succeed Wilson, Adams named Bushrod Washington of Virginia, President Washington′s nephew. To succeed Iredell, he chose Alfred Moore of North Carolina.

The August 1800 term was the last to be held in Philadelphia, and only Paterson, Moore, and Washington attended. Ellsworth, named ambassador to France in February 1799, was abroad—as he was for the remainder of his time as chief justice. Cushing was ill, and Chase was campaigning (unsuccessfully) for Adams′s reelection. The staunch nationalist position of the Court became a campaign issue in the 1800 election and was coupled with complaints about the ambassadorial service of Chief Justices Jay and Ellsworth, acting as agents of the Federalist administrations. The Court′s first decade was a cautious time. As Goebel concludes:

Its posture toward acts of Congress, except for a few instances of individual critique, was one of respect. There were, indeed, occasions … that invited inquiry into the constitutional basis for congressional action where less deference would have been appropriate. These opportunities were not seized, nor was there succumbing to the temptation to a loose construction of statutory language sometimes advanced by counsel in argument.

When the Court was constrained to explore the intendment of statutory language, it did so as a court of law in terms familiar to the profession and not by flights of fancy about the “spirit” of the Constitution. [37]


Document Citation
1 David G. Savage, The Court's Slow Start, 1790–1800, in Guide to the U.S. Supreme Court 6-9 (5th ed., 2011),
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