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Drama, controversy marked the first Supreme Court justices

September 24, 2016 by Scott Bomboy


It was 227 years ago today that Congress signed the law that created the framework for the Supreme Court, and a look back at the first court shows personal drama that included a justice dodging creditors, a failed suicide attempt, and a chief justice who was America’s most hated man, for a time.

johnjayThe framers had made provisions for the court in Article III, Section 1, of the Constitution, but it took the Judiciary Act of 1789 to make the court a reality.

In the first session ever in Congress, lawmakers passed the Judiciary Act on September 24, 1789, which established the framework for the Supreme Court, as well as circuit and district courts and the attorney general’s office.

President George Washington named six Supreme Court justices who were approved within two days by Congress.

On February 1, 1790, the first session of the U.S. Supreme Court was held in New York City’s Merchants Exchange Building.

By then, the court had already lost a justice and two other justices missed the session because of transportation problems.

It wasn’t the first problem for the first Supreme Court.

The court’s creation was controversial, as the Anti-Federalists thought it would be too powerful. However, Alexander Hamilton argued in The Federalist essays that the court had a critical role as a check against legislative and executive abuse.

“Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former,” Hamilton said in The Federalist No. 78.

His point was later settled in the historic Marbury v. Madison ruling in 1803, which gave the Supreme Court the ability to overturn congressional acts it deemed as unconstitutional.

A completely different Court than today’s

The  first Supreme Court, named by President Washington when he signed the Judiciary Act, would be most unusual today, in its behavior and temperament.

The court had just six justices with the aforementioned undefined powers, and definitely a few personal issues. The Supreme Court justices were also required to “ride circuit,” and hold hearings twice a year in one of three judicial districts.

The first Chief Justice was John Jay, and the associate justices were John Rutledge, William Cushing, John Blair Jr., Robert Harrison, and James Wilson.

Jay had written part of The Federalist essays, but his role as the first Chief Justice included two campaigns for governor in New York (while he was still a justice) and the controversial Jay Treaty with Great Britain.

The treaty Jay negotiated, while he was still on the Supreme Court, was highly unpopular. We can’t repeat some of the words used in public about Jay, who was seen as favoring the British as a negotiator, but here is a typical quote that appeared in New York or Boston:

“Damn John Jay! Damn everyone who won’t damn John Jay!! Damn everyone that won’t put lights in his windows and sit up all night damning John Jay!!!”

The chief justice later said he could find his way across the country by the light of his burning effigies.

Jay left the court in 1795 after finally winning a gubernatorial election. The court had heard very few cases since 1789 under his leadership.

John Rutledge was at the Constitutional Convention and an important figure in South Carolina when he was first named to the Supreme Court. He served two years on the bench and quit in 1791, without hearing a case.

President Washington then asked Rutledge to return as chief justice to replace Jay in 1795 while the Senate was in recess, and Rutledge heard two cases during that time. However, the Senate rejected Rutledge’s permanent nomination after he publicly criticized the Jay Treaty with some inflammatory language (he compared it to prostitution).

Rutledge jumped off a wharf in Charleston in a failed suicide attempt after he heard about the Senate vote (he was rescued by two slaves who saw the incident). His public career was over.

A justice on the run

James Wilson was also a key player at the Constitutional Convention who had a troubled career after joining the high court.

Wilson was a leading legal theorist, but he was also troubled by bad debts after getting involved in some land deals. Wilson was imprisoned twice for bad debts while he served on the Supreme Court, and he missed several court sessions as he avoided bill collectors.

Wilson died in 1798 while still on the bench. He was staying at the house of a friend in North Carolina, out of the reach of creditors, and riding the Southern District court circuit.

William Cushing was the longest-serving justice appointed by Washington, and he remained on the court until 1810. But Cushing rejected the job of chief justice in 1796 even though Washington nominated him and the Senate had unanimously approved the nomination. (Perhaps he saw what happened to Jay and Rutledge.)

John Blair Jr. was a highly regarded jurist from Virginia who served on the court until 1795, while Robert Harrison immediately declined his appointment from President Washington and was replaced with James Iredell in 1790.

Iredell was the friend that James Wilson was visiting in North Carolina for an extended period in 1798, when Wilson died. Iredell would die the following year at the age of 48, and historians cite the rigorous job of “riding circuit” as a cause of Iredell’s death.

Iredell traded his southern route with Wilson as a favor, and traveled from North Carolina to the court’s Middle Circuit, which ranged from Virginia to New Jersey and Philadelphia. (One historian speculates that Iredell might have had another motive: He had grown close to Wilson’s young wife in Philadelphia.)

The Supreme Court would find stability with the appointment of John Marshall as chief justice in 1801 by outgoing President John Adams.

Marshall was the second choice for the position. Adams initially asked John Jay to return, but Jay refused. He said the Supreme Court lacked “energy, weight, and dignity.”

Scott Bomboy is the Editor-in-Chief of the National Constitution Center.

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