SUPREME COURT JUSTICES

Half of the twenty justices of the U.S. Supreme Court who served from 1790 to 1828 were appointed by President

George Washington. When John Adams's three appointees are added to Washington's ten, the two Federalist presidents named nearly two-thirds of the justices in the nation's founding years. Thomas Jefferson complained to Connecticut merchants on 12 July 1801 about the lack of vacancies in federal offices: "Those by death are few, by resignation none." This would prove especially true of Federalist justices. During seven consecutive Republican administrations, Jefferson named three justices, James Madison two more, and James Monroe and John Quincy Adams one each. Two of the Federalists, Chief Justice John Marshall and Bushrod Washington, outlasted Jefferson, who died in 1826. Marshall served until 1835, near the end of Andrew Jackson's two terms as president.

federalist dominance

Selection of the six members appointed to the first Supreme Court of the United States was largely influenced by two dominant considerations: the need for geographical balance and for extensive government or judicial experience, including a demonstrated commitment to the success of the newly adopted U.S. Constitution. Because the justices spent much more of their time in the circuit courts than in the Supreme Court, it was essential that they be widely distributed. The order of appointment of the initial six justices followed a clear North-South pattern while also rewarding the populous states: Chief Justice John Jay (New York), John Rutledge (South Carolina), William Cushing (Massachusetts), John Blair (Virginia), James Wilson (Pennsylvania), and James Iredell (North Carolina).

All members of this first Supreme Court had demonstrated firm commitment to the Constitution. Jay's lengthy career in the Continental Congresses and in diplomacy had made him one of the leading American nationalists. He was not at the Constitutional Convention that developed the Constitution but wrote three important essays urging ratification in The Federalist (1787–1788) and would have written several more if not prevented by poor health and injuries. Wilson and Blair were signers of the Constitution and members of their state ratifying conventions; Wilson's contributions to the Constitution were exceeded only by those of James Madison. Rutledge was also a signer. Cushing supported the Constitution in the Massachusetts ratifying convention and Iredell supported it both in the North Carolina convention that rejected it in 1788 and in the reconstituted convention that approved it in 1789.

Similar credentials were held by all but one of Washington's remaining appointments. Thomas Johnson (1791) was in the Maryland ratifying convention. William Paterson (1793), another signer, worked avidly in the convention and afterward as a New Jersey senator to develop a strong judiciary based on the supremacy clause that he contributed to the Constitution. He and Oliver Ellsworth of Connecticut, who would become the third chief justice in 1796, were the principal authors in the first Senate of the Judiciary Act of 1789, which provided the basic ground rules of the federal judiciary for the next century. Ellsworth was on the committee of detail, which assembled the first draft of the Constitution, as were Wilson and Rutledge, who chaired it. Ellsworth led the campaign for Connecticut's ratification of the Constitution, as did Paterson in New Jersey.

Samuel Chase, also appointed in 1796, represented a new criterion of eligibility. During his radical years he had opposed Maryland's ratification of the Constitution. In Congress during the Revolutionary War, however, he had consistently supported General Washington and, more important, by 1796 he had become deeply committed to the Federalist Party. Commitment to the new political parties would from that point be joined with geographical balance to determine appointments. John Adams appointed only Federalists and his four successors appointed only Republicans.

Federalist Senates dutifully confirmed all but one of Washington's appointments. Rutledge was twice appointed but only once confirmed, thus confusing statistics on Court membership. Technically the senior associate justice, Rutledge had sat with circuit courts but never attended the Supreme Court when he resigned in 1791 to become South Carolina's chief justice. He later changed his mind and requested appointment as Jay's successor. Washington promptly granted an interim appointment and Rutledge acted as chief justice for the August 1795 term. By the time the Senate convened four months later, however, Rutledge's attacks on the Jay Treaty (1794) had made him politically unacceptable to Federalist senators, and he was rejected by a narrow vote.

Rutledge was not alone in deciding that the Supreme Court was less appealing than he had expected. Jay found the office too limiting and the time and energy devoted to circuit court duties too enervating, so—while still sitting on the Court—he became Washington's special envoy to Great Britain, where he negotiated Jay's Treaty (1794). He was elected governor of New York while abroad and resigned from the Court in 1795. In 1800 he was reappointed and confirmed as successor to Chief Justice Ellsworth (ironically his own successor), but he rejected the position, which he described as lacking "energy, weight and dignity." Ellsworth also took a year off to negotiate peace with France and resigned upon his return. Despite the brevity of his period as chief justice, Ellsworth achieved a major procedural change. Sometimes he persuaded his colleagues to replace seriatim opinions (justices individually reading their own opinions) with majority opinions that might be accompanied by dissenting and concurring opinions. Thomas Johnson served only two years before refusing ever again to ride circuit. Alfred Moore of North Carolina, who joined the Court in 1800, served only four uneventful years before making the same decision.

jeffersonians gain ground

Adams's two Virginia appointees were major exceptions from this pattern of short tenures. Bushrod Washington, favorite nephew of George Washington, served from 1799 to 1829. John Marshall was an even greater political coup, serving as chief justice from 1801 to 1835. Taking note of the young ages of Adams's successful appointments (Marshall at age forty-five and Washington at age thirty-six), the three succeeding Virginia presidents appointed Republicans young enough to survive all but those two Federalists. William Johnson (South Carolina) served thirty years from 1804, Henry Brockholst Livingston (New York) sixteen years from 1806, Thomas Todd (Kentucky) nineteen years from 1807, Gabriel Duvall (Maryland) twenty-three years from 1811, Joseph Story (Massachusetts) thirty-four years from 1812, and Smith Thompson (New York) twenty years from 1824. The exception was John Quincy Adams's lone appointee, Robert Trimble, who served only two years before dying in 1828.

Political affiliation trumped geography when it came to appointments of chief justices. Washington appointed the South Carolinian Rutledge to become chief justice as successor to Jay of New York, Washington then gave consideration to the Virginian Patrick Henry as Rutledge's successor (after Rutledge was rejected by the Senate) before finally turning to Ellsworth. Next, Ellsworth was succeeded by Marshall, even though another Virginian Bushrod Washington was already on the Court.

limits on judicial grandeur

Ironically, neither of the great early justices was first choice of his presidential appointer. John Adams turned to Secretary of State John Marshall only six weeks before the presidency and the appointment would be lost to Jefferson. Jay had been appointed but declined. A young Philadelphia attorney was next considered and Adams at least talked of considering the ailing Justice Cushing, who had been unwisely appointed and confirmed as chief justice in 1796. Fortunately, Cushing recognized even then that his physical and mental health would not allow him to accept. (Ninety-eight years would pass before the next associate would be appointed chief justice.) Unwilling to wait longer, Adams turned to Marshall, from whom he could receive a timely response because they were face-to-face in Washington, D.C. Even at that precarious moment, High Federalists in the Senate stalled in hopes of coercing the president to appoint William Paterson instead. Marshall would soon become so powerful a figure on the Court that there were only limited opportunities for others to shine.

The monumental exception was Joseph Story, whose appointment by President Madison was even more confused because finding a reliable Republican lawyer in New England was difficult. Former Attorney General Levi Lincoln of Massachusetts was appointed and confirmed but declined because of ill health and near blindness, Alexander Wolcott of Connecticut was appointed but overwhelmingly rejected by the Senate, and John Quincy Adams of Massachusetts was appointed and confirmed unanimously but preferred to remain ambassador to Russia. Only after trying Lincoln one more time did Madison conclude that Story was adequate despite Jefferson's strong objections. While lobbying for Lincoln, Jefferson described Story as "unquestionably a Tory and too young." Elsewhere he branded him a "pseudo-Republican." At age thirty-two Story became the youngest justice in the history of the Supreme Court. He was Marshall's perfect teammate, providing the legal scholarship to enhance Marshall's common-sense decisions. Most of the memorable decisions that were not delivered by Marshall were written by Story.

Samuel Chase might have achieved greatness if not for his rapidly declining health and his violent temper and partisanship. His first opinion (Ware v. Hylton, 1796), ruling that legislation violating a U.S. treaty was unconstitutional, is regarded as the greatest Supreme Court opinion prior to Marshall's Marbury v. Madison (1803). Chase's Calder v. Bull (1798) set permanent limits on the Constitution's ex post facto clause. Sadly, his offensively partisan charges to juries, especially in Sedition Act cases, while on circuit made him in 1804 the only member of the Supreme Court ever to be impeached. The following year, the Republican-dominated Senate fell well short of the two-thirds majority required for removal. Thenceforth, the Jeffersonians' impeachment threat was withdrawn and the judges, in turn, became less politically pugnacious.

Judicial experience was desirable for would-be justices, but not mandatory. Only Cushing, Chase and Blair had extensive judicial experience and Todd had spent considerable time on the bench. At the other extreme, Wilson, Paterson, Moore, Washington, Marshall, and Story had been in court only as lawyers. The others had spent limited time on various local benches. It should be added that Story and Wilson could be fairly described as the Supreme Court's prominent early scholars.

See alsoConstitutional Convention; Judiciary Act of 1789; Marshall, John; Supreme Court .

bibliography

Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia: University of South Carolina Press, 1995.

Friedman, Leon, and Fred L. Israel, eds. The Justices of the United States Supreme Court, 1789–1978: Their Lives and Major Opinions. 4 vols. New York: Chelsea House, 1980.

Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1835. Columbia: University of South Carolina Press, 1997.

Stites, Francis N. John Marshall, Defender of the Constitution. Boston: Little, Brown, 1981.

Urofsky, Melvin, ed. The Supreme Court Justices: A Biographical Dictionary. New York: Garland, 1994.

Donald O. Dewey