Chapter 3: The John Jay Court (1789-95)

Once inaugurated, the duty falls on President George Washington to nominate the first six of the ten justices he will pick during his two terms. On September 25, 1789, the day the Judiciary Act takes effect, he chooses then acting Secretary of State, John Jay, as the first Chief Justice, along with five Associates. Soon thereafter he will also name two other “replacements” when John Rutledge and Thomas Johnson resign.

As is the custom, each Justice is assigned a “seat number” on the bench with the Chief being #1 and the others following. When openings occur – predominantly through deaths — successors are assigned the same seat number as the person they replaced. Thus within the “Jay Court,” three judges (Rutledge, Johnson and Patterson) will occupy Seat #2.

Members of the “John Jay Court”: 1789-1795

The “Jay Court” comprises men who have all played important roles in the founding of the United States, starting with the Chief himself.

John Jay is born in 1745, the grandson of a French Huguenot who arrives in America seeking religious freedom. His father becomes a wealthy merchant and slaveholder before retiring to a farm in Rye, New York. He is the youngest of eight siblings and is initially home-schooled by his mother before entering Columbia College in 1760 at age fourteen. He goes on to read the law, pass the bar and set up his own practice before growing tensions with Britain drag him into the political arena. As a delegate to the First Continental Congress in 1774, he initially seeks reconciliation with the Crown until its continued abuses find him advocating for independence. With the war under way, he is appointed President of the Second Continental Congress in 1778, at age thirty-two. With victory won on the battlefield, Jay joins John Adams and Ben Franklin to negotiate the 1783 Treaty of Paris formally ending the conflict. The acumen he displays in Paris leads to his selection as Secretary of Foreign Affairs, the new nation’s leading diplomatic post, which he holds from 1784 to 1789. While there he also pens five of the Federalist Papers to support ratification of the 1787 Constitution against stiff opposition in his home state of New York.

In October 1789, Washington chooses Jay as the first Chief Justice of the Supreme Court. But while serving there, the president also calls upon his diplomatic skills to try to keep the country out of another growing conflict between Britain and France. The year is 1794 and negotiations in London result in the “Jay Treaty” which resolves many left-over land and financial issues from the Revolutionary War and establishes “most favored nation” trading status with Britain going forward. While it delivers on Washington’s goals, it is met with hostility by Jefferson and his backers who feel that loyalty should belong with France, not Britain.

At the personal level, Jay’s life is marked by deep religious faith as a member of the Church of England. His priorities lie in achieving peace between nations and virtuous treatment of all men. On the latter he struggles throughout his career to find a “solution” to end slavery. In 1774 he compares the transgressions of British tyranny to those of chattel slavery. In 1785 he helps found the New York Manumission Society, a precursor to the American Colonization Society of 1817. When that proves impractical, he buys and then manumits slaves in a way that guarantees their legal freedom. He also attacks human bondage in a series of speeches and essays, including an 1819 missive opposing the admission of Missouri on grounds that slavery “ought not to be introduced nor permitted in any of the new states.” Jay’s tenure on the high court lasts for almost six years, by which time he seems bored by the job and eager for new challenges. He resigns in 1795 to run for Governor of New York, where he serves two terms.

Like Jay, John Rutledge of South Carolina serves on the Continental Congresses, and plays a leading role in finalizing the 1787 Constitution, as Chairman on the Committee of Detail. He is a dominant personality in Philadelphia, where he is known as “Dictator John,” the owner of 60 some slaves and a fierce defender of the institution. Rutledge is the first Associate Justice to resign, which he does in 1791, to become head of the South Carolina State Court of Common Pleas.

Rutledge’s departure opens Seat #2 on Ellsworth’s Court to Thomas Johnson who, as a land surveyor, becomes a close friend of George Washington. Johnson supports the fight for independence in Maryland and becomes the state’s first Governor. But he is fifty-nine years old and worn out in 1792 when the president almost coerces him into becoming an Associate Justice. He serves for only 163 days and resigns, citing damage to his health related to riding the circuit. This opens the door to William Paterson who is born in Ireland before moving to America as an infant.

Paterson graduates from Princeton, becomes a lawyer in 1768 and serves as New Jersey’s first Attorney General from 1776-83. At Philadelphia in 1787, he signs the Constitution after presenting the important “New Jersey Plan” backing a bicameral Congress. His popularity results in his election as the state’s first U.S. Senator, and he helps pass the 1789 Judiciary Act. He serves there for only a year before resigning to become Governor of New Jersey in 1790. After Washington appoints him to the high court in 1793 he remains there for thirteen years before dying after a stage coach injury sustained while on the circuit.

James Wilson is born and educated in Scotland before immigrating to Philadelphia in 1765 at age 23 to set up a law practice. He is soon engaged, alongside Jefferson and John Adams, in citing British abuses of the colonies and in calling for the Continental Congresses to address them. Wilson signs the Declaration of Independence and the 1787 Constitution, where he proposes the critical “3/5^th Compromise” (to include slaves in the State census counts). He is also a member of the “Committee of Detail” where he drafts the Preamble and leads the editing of the final document. He is considered by many to be the finest legal scholar at the convention.

Virginia’s John Blair Jr. is a son of the colony’s former Royal Governor who studies law in London at the Middle Temple, home to many a famous English barrister. His opposition to British rule follows the Crown’s rejection of grievances filed by the colony’s House of Burgesses, of which he is a member. As the Revolutionary War plays out, Blair helps establish the state’s government and serves as chief justice on its highest court. In 1787 he joins Rutledge and Wilson in signing the U.S. Constitution.

William Cushing hails from a long line of Puritans, and his career follows that of his father. He studies law at Harvard, opens a successful practice, and eventually succeeds his parent as chief justice of the Massachusetts’ Superior Court. His ruling in the 1783 case of Commonwealth v Jennison pegs him as an opponent of slavery: I think the idea of slavery is inconsistent with our own conduct and Constitution… and is totally repugnant. Cushing is the last member of the Supreme Court to don a traditional English wig on the bench.

James Iredell’s path to the high court is more unexpected than his colleagues. He migrates from England to North Carolina after his father’s business fails, and learns about the law, largely on his own, while working in a customs house. At twenty-three he begins writing essays citing British violations of parliamentary law and, during the subsequent war, he helps set up the judiciary system in his home state. Financial constraints prohibit his attendance at the 1787 Convention, but he plays a leading role in getting the new Constitution ratified in North Carolina in the face of sizable opposition. At 38 years of age, he is the youngest member of the Jay Court.

Addition Profiles of the Jay Court Justices

The main accomplishment of the “Jay Court” involves starting up the Federal Judiciary and beginning to integrate it, with minimal disruptions, into the State Court systems already in place. That is no small task and Jay, ever the diplomat, deserves much credit for the accomplishment.

Meanwhile the court’s impact on actually interpreting and ruling on issues of law is minimal. In almost six years, it hears a total of only five cases – with two being considered even slightly consequential. The first, titled Hayburn’s Case, has the potential for the Court to address the constitutionality of a bill passed by the U.S. Congress related to Revolutionary War veteran’s pensions, but five of the six justices decline to issue a ruling.

The second case, Chisolm v Georgia, does end with a decision and one that is both significant and controversial. By a 4-1 vote the Court finds, based on its reading of Article III, Section 2, that Alexander Chisolm of South Carolina has the right to sue the government of Georgia over a debt owed. However, Justice James Iredell dissents, citing a fear that the precedent would lead to a flood of cases where sovereign states would be sued in federal courts.

Almost immediately the state’s rights advocates in Congress respond to Chisolm with what becomes, the 11^th Amendment to the Constitution, passed in 1794 and ratified in 1795. It overturns the court’s ruling and grants States “sovereign immunity” by prohibiting Federal Courts from hearing cases brought against them by individuals of another state or country.

(In 1890, this notion of “sovereign immunity” is extended to cases brought by citizens of the same state.