A Visit with the First Chief Justice
Katonah Historic Site
By Jim Ormond

Close scrutiny and the glare of media attention have always met nominees to the United States Supreme Court and President Bush’s recent choice is no exception. Those seeking a deeper understanding of the history of the Supreme Court as an institution might heed a tried and true legal maxim “look to precedent.” Fortunately Westchester residents don’t have to look very far. Tucked away along route 22 in Katonah, a sign announces the “Home of John Jay: First Chief Justice of the United States.”

The John Jay Homestead, with its 62 acres and 12 separate buildings, offers public tours, class trips, and events that provide visitors with a window into the most formative era in American history. The New York State Department of Parks, Recreation and Historic Conservation operates the site with important support from The Friends of the John Jay Homestead, an affiliate of the Westchester Arts Council. The Friends’ Public and Educational Programs illuminate Jay’s legacy as well as his generation of founding fathers.

The site is well worth the trip for anyone interested in the era and court watchers can supplement their visit with two recent books on the subject: “John Jay” a well received biography by Walter Stahr and “A People’s History of the Supreme Court” by Peter Irons.

Jay, who served as the Chief Justice of the Supreme Court from its inception in 1790 until he was elected Governor of New York in 1795, was considered one of the new nation’s most eminent citizens (having served as Secretary of Foreign Affairs in the Continental Congress). However, the five other associate justices Washington appointed were not held in high regard. In his book Peter Irons writes of the justices “One spent time in a debtors’ prison for defaulting on loans, one returned his commission after five days to serve in a state office, one was impeached for political bias on the bench, one never attended a single court session, one was insane and another was senile.”

Attracting high caliber justices was difficult for a court that had little business, offered a low salary and required the justices to spend half the year away from their families hearing cases in Federal District courts. Nearly as many men declined to serve on the first court as accepted.

As there were no political parties as we would recognize them today, Washington selected men who were dedicated to the Federalist cause, ie… they believed in the importance of establishing a federal government for the former colonies and were supportive of its new constitution.

According to both Irons and Stahr, the Supreme Court had an inauspicious beginning. The Court’s first meeting took place on the second floor of a two story building in downtown Manhattan, the first floor of the building was a public market place that was closed on court dates to keep the noise down.

Unfortunately, the court could not transact any business on the first day because, in addition to Jay, only two of the five associate Justices showed up, not a sufficient number for a quorum. Even when a quorum was present, the justices dealt only with procedural rules and admission of lawyers to the court’s bar. Beyond the question of whether the court could transact any business at all, was the issue of when the court would actually render a legal decision. Because the Supreme Court was a new creation, it took time for cases to wind their way up through the lower courts. Chief Justice Jay adjourned the first three terms of the Court without the court issuing a single legal decision.

Eventually, the Supreme Court did wrestle with the difficult task of applying an untested constitution on a fragile republic. The first significant issue dealt with the separation of powers of the various forms of government and arose as the justices were serving in their capacity as circuit court judges. The judiciary act of 1789 required that two Supreme Court Justices sit with each Federal district judge, with the idea of bringing federal judges closer to the people. A subsequent act of Congress also required that federal district judges determine the pension awards of Revolutionary war veterans.

Under the act, the Secretary of War, an official of the Executive Branch of government, could review the court’s decision and modify them as he chose. The Justices initially refused to hear the case, claiming in a letter to President Washington that the subjection of the court’s decision to the Secretary of War was a clear violation of the constitution’s separation of powers. Ultimately, the Court agreed to hear the case but delayed making a decision until congress could amend the law so that the justices would not be involved with pension determinations.

Although the dispute was resolved quietly and did not involve the full Supreme Court as an institution, it was the first time Supreme Court Justices directly challenged the constitutionality of an act of Congress and laid the groundwork for similar challenges in the future.

The most controversial case of Jay’s tenure spoke to whether the new Federal Constitution trumped the long respected sovereignty of the states. In Chisolm V. Georgia, Alexander Chisolm, a citizen of South Carolina filed suit against the State of Georgia. Chisolm was the executor of the estate of Robert Farquahar, who has sold cloth and uniforms to Georgia during the Revolutionary War but had never been paid. Under the laws of the old Continental Congress, each state was sovereign and could not be sued by a citizen of another state. While it is taken for granted today that the Supreme Court may review a state statute and declare it unconstitutional, in the 1790’s popular sentiment viewed the Federal judiciary as subordinate to the rights of the individual states.

Chisolm cleverly hired Attorney General William Randolph to represent him (at that time the Attorney General was permitted to take on private clients to supplement his income). Randolph argued straightforwardly before the Supreme Court that Article III of the Constitution made it possible for a citizen of one state to sue another state. While it is perhaps little surprise that justices with Federalist sympathies would agree with Randolph that the new constitution allowed such lawsuits, the justices were aware that they were setting a new precedent that would have wide-ranging implications.

In his decision siding with Chisolm, Jay wrote that at the time of the revolution “the sovereignty of their country passed to the people of it. Although thirteen sovereignties were considered as emerged from the principles of the revolution the people nevertheless continued to consider themselves, from a national point of view, as one people.”

None of the justices expected the furor their decision would invoke. State Legislatures, including Virginia and Massachusetts, immediately sent Congress resolutions demanding a constitutional amendment to overturn the court’s ruling. The Georgia state legislature passed a resolution that any federal official who attempted to enforce the Supreme Court’s judgment “would be guilty of felony and shall suffer death, without the benefit of clergy being hanged.” The Georgia bill never became law but an even more damaging initiative to the new court’s influence did. The eleventh amendment to the Constitution, ratified in 1794, stated that “the judicial power of the United States does not extend to suits against one of the United States by citizens of another state.”

Always in demand for his diplomatic skills, Jay was called upon to craft a treaty to resolve commercial disputes with Great Britain while he was still on the court. With the acclaim he received for the Jay Treaty of 1795, Jay was propelled to the Governorship of New York and resigned his post as Chief Justice.

Chastened by the aftermath of the Chisolm decision, the Supreme Court avoided confrontations and shyed away from controversial cases for the remainder of the 1790’s. As Irons put it in his People’s History of the Supreme Court, “the Supreme Court ended its first decade anything but Supreme in public estimation.”

Sources
Irons, Peter , A People’s History of the Supreme Court, Viking c 1999 pgs. 85-95
Stahr, Walter, John Jay, Hambledon & London, c 2005 pgs. 271-312