U.S. Supreme Court
By Laura Michel
Essay
As the nation’s capital from 1790 to 1800, Philadelphia also served as the seat of the United States Supreme Court. Sharing a space with the Mayor’s Court in Old City Hall at Fifth and Chestnut Streets, the Supreme Court of the 1790s was very much an institution in progress. Established by Article Three of the Constitution and further elaborated by the Judiciary Act of 1789, the court’s power of judicial review—generally considered to be at the heart of the institution’s authority and prestige—was not specifically articulated until Marbury v. Madison in 1803, after the capital moved to Washington, D.C. Despite its relative weakness, scholars have come to identify the Supreme Court’s time in Philadelphia as a period of important procedural groundwork that allowed the court to evolve into an independent and powerful branch of government.
The Supreme Court of the 1790s was smaller than its modern iteration. In accordance with the Judiciary Act of 1789, it had six members: one chief justice and five associate justices. With a firm belief in the importance of a strong judiciary to effective governance, President George Washington (1732-99) approached the selection of these early justices deliberately, prioritizing geographic diversity and jurists with established records of service to the young nation. The men who served during the court’s first terms in Philadelphia included well-known figures such as Federalist Papers coauthor John Jay (1745-1829); Constitutional Convention delegates James Iredell (1749-1829, North Carolina), John Rutledge (1739-1800, South Carolina), and James Wilson (1743-98, Pennsylvania); as well as established jurists William Cushing (1732-1810) from the Massachusetts Superior Court and John Blair (1732-1800) of the Virginia Court of Appeals. During the court’s tenure in Philadelphia, six additional appointments were made, including the third chief justice, Oliver Ellsworth (1745–1807).
The justices met as a whole body for two one-month terms in February and August and spent much of their time away from Philadelphia performing their “circuit riding” duties. The Judiciary Act of 1789 had established a series of lower federal courts: one district court per state and three superior circuits (Eastern, Middle, and Southern). Drawing from English judicial tradition, two Supreme Court justices were assigned to each “circuit” and would “ride” to hear cases in their respective regions. The justices almost universally loathed these duties. While neither February nor August was the most salubrious time to be in Philadelphia, circuit riding presented much more of a threat to life and limb. Justice Iredell’s leg was broken in a road accident, Justice Samuel Chase (1741-1811) nearly drowned when his carriage misjudged the depth of a river, and Justice Wilson died of malaria while on circuit duties in North Carolina. While the Judiciary Act of 1793 reduced this burden and required only one justice to be present at a hearing, the practice of circuit riding meant that justices were not part of the everyday social or political life of Philadelphia in the 1790s.
Constrained by the burden of circuit riding and its as-yet unsettled powers, the Supreme Court heard only an average of seven cases per year during its time in Philadelphia. While few, these cases nevertheless reflected the role of the court in the broader Federalist project of establishing and enhancing federal authority. Van Staphorst v. Maryland (1791), the first case docketed before the Supreme Court, involved a dispute over the repayment of a loan made by Dutch bankers Nicolaas (1742-1802) and Jacob van Staphorst (1747-1812) to Maryland during the Revolution. While it was ultimately settled out of court, by agreeing to hear the case, the court held that it had jurisdiction to enforce contracts made between foreign nationals and states.
Subsequent cases continued to build on this articulation of federal power and authority, perhaps most controversially in Chisholm v. Georgia (1793). In this landmark case, Alexander Chisholm (c. 1738-1810), executor of the estate of a South Carolina merchant, sued the state of Georgia for the nonpayment of goods provided by his client during the Revolutionary War. Georgia, citing the long-held British common law doctrine of sovereign immunity, claimed that a state could not be sued without its consent and called for the case to be dismissed. In a 4-1 decision in favor of Chisholm, the court ruled that Article 3, Section 2, of the Constitution superseded states’ claims of sovereign immunity and made them subject to the jurisdiction of the Supreme Court. With the ratification of the Constitution, Chief Justice Jay wrote in his decision, the ultimate sovereignty of the people was placed in the federal government, to which the states were subordinate. In the context of the emerging First Party System and debates over federalism, the decision met with vocal opposition, particularly from the states. In response, Congress moved quickly to adopt the Eleventh Amendment (1795), which limited the ability of individuals to sue states in federal courts. Despite this apparent setback, the Supreme Court continued to place limits on states’ sovereignty throughout the 1790s, including in Ware v. Hylton (1796), which ruled that federal treaties had precedence over any conflicting state laws.
In addition to cases heard, the court fashioned its place in the federal system in what it opted not to do. Rather than defer to the stronger and better-defined executive and legislative branches, the justices asserted their own vision of the extent and limits of judicial power. This was particularly apparent in the career of John Jay, the first chief justice of the Supreme Court. In 1793, Secretary of State Thomas Jefferson (1743-1826)—acting on behalf of Jay’s longtime friend President Washington—asked the court to prepare an official advisory opinion related to American neutrality amidst ongoing conflict between Britain and France during the wars of the French Revolution. Jay, who was well-known and respected for his role in the negotiation of the Treaty of Paris, was certainly qualified to advise on this matter of foreign policy. Nevertheless, he declined to offer an official opinion in order to protect the impartiality of the Supreme Court should any related cases appear on its docket in the future. Only by doing so, Jay asserted, could the separation of powers and system of checks and balances established by the Constitution truly succeed. At the same time, Jay saw no issue with continuing to serve as a personal advisor to Washington. He even offered to help the administration draft its 1793 Proclamation of Neutrality, publicly defended the policy in an ex-officio capacity, and led a diplomatic mission to Britain to negotiate what became known as the Jay Treaty in 1794.
In terms of the accepted scope of its authority, prestige, the amount of time spent in session, and the number of decisions made, the Supreme Court of the 1790s was a less powerful and less robust institution than the court that later emerged in Washington under the leadership of Chief Justice John Marshall (1755-1835). Nevertheless, the importance of the court’s evolution during its time in Philadelphia should not be underestimated. Its role in the articulation of federal supremacy and its assertion of its position as an independent third branch of government laid the groundwork for its emergence in later years as a powerful and prestigious institution.
Laura Michel holds a Ph.D. in History from Rutgers University. Her work considers the intersection of philanthropy, reform, and identity in the early American republic. (Author information current at time of publication.)
Copyright 2023, Rutgers University.
Gallery
Old City Hall
National Archives and Records Administration
Philadelphia was the United States’ capital from 1790 to 1800, following New York City’s short-lived tenure and prior to the capital’s transition to its current location in Washington, D.C. During those years, the Supreme Court met in Philadelphia’s then-new City Hall. Completed in 1791, the City Hall at Fifth and Chestnut Streets replaced the building at Second and Market Streets that had acted as Philadelphia’s Court House and City Hall since 1707. According to City Council minutes, negotiations and clamors for a more spacious City Hall had been brewing since 1746. However, City Council was not authorized to move forward with the project until 1789. The new City Hall at Chestnut and Fifth Street remained in use by the first United States Supreme Court until 1800 and as Philadelphia’s City Hall until 1854. Later known as “Old City Hall,” the building became part of Independence National Historical Park.
Chief Justice John Jay
John Jay, depicted in this undated portrait clipping, was born in New York City in 1745. Originally trained as a lawyer, Jay also became a prominent diplomat. Along with Benjamin Franklin, Jay helped negotiate the Treaty of Paris, which ended the Revolutionary War, in 1783. Additionally, with Alexander Hamilton and James Madison, Jay anonymously authored five of the
Despite Jay’s attempts to remain untangled from partisan issues, his skill as a diplomat won out, and he was dispatched to England by Washington to negotiate the Treaty of Amity, Commerce, and Navigation, or what would become known as the “Jay Treaty” in 1794. His appointment for this mission was highly unpopular and protested by many Americans. Many contemporaries believed that his Federalist background would not win the United States suitable trade concessions by giving too much ground to the British and that his appointment could compromise the Supreme Court’s impartiality. So reviled was his appointment, upon his return to the United States protesters in many cities burned or hanged his effigy. He soon retired from the court to serve as New York governor until his retirement in 1801. Though President John Adams attempted to entice him to serve as chief justice once again around that same time, Jay declined and spent his almost thirty remaining years retired on his family farm.
Mezzotint of Judge James Iredell, 1798
The last of the first six United States Supreme Court justices appointed, Judge James Iredell was not originally one of President George Washington’s choices. After Maryland Judge Robert Hanson Harrison declined the appointment in preference to a position closer to home, Washington selected Iredell as his sixth man. Born in England in 1749, Iredell journeyed to America at age seventeen and began to study and practice law. Iredell, a Federalist, had represented North Carolina at the Constitutional Convention. Iredell became a Federalist paragon after taking pen to paper to answer delegate George Mason’s critiques and objections towards the Constitution. These critiques were published as Objections to this Constitution of Government (1787).
During his time on the bench, Iredell became known for his intense desire to reform the practice of “riding circuit” to hear cases in lower federal courts around the country. Once even breaking his leg while “riding circuit,” Iredell and other justices clamored against such an expensive and arduous practice. While Congress eventually passed a law ensuring that justices would not have to ride the same circuit twice consecutively, riding circuit did not stop until nearly one hundred years later. The toll of riding circuit contributed to Iredell’s premature death in 1799 at age forty-eight.
Portrait of John Rutledge, 1791
John Rutledge, pictured here in a reproduction of a 1791 portrait, was a long-time South Carolina statesman who served in the Commons House of Assembly from 1761 to 1775. Like many other founding fathers, Rutledge at first did not want independence from Britain, but a cessation of taxation. He was a South Carolina delegate at the First Continental Congress in 1774 and the Second Continental Congress in 1775. Though he eventually supported revolution, he stayed a “reluctant rebel” throughout the war.
As a Southern representative during the Constitutional Convention (1787), Rutledge was pro-slavery, advocating for concessions towards the South and the measure for southern representation in taxation that became the “three-fifths compromise.” The three-fifths compromise counted enslaved Africans as less than a whole person in Article I of the Constitution. Following the Constitutional Convention, Routledge was appointed a justice of the first Supreme Court.
By the mid-1790s, Rutledge was personally riddled by debt, alcoholism, and family hardships, and many public officials believed he behaved in erratic ways. For example, his vocal opposition to the Jay Treaty lost him the respect of his peers. He once gave an impassioned speech in 1795 during which he stated that “he had rather the President should die, dearly as he loves him, than he should sign that treaty."
Though nominated for the position of chief justice in 1795, Rutledge’s behavior led the Senate to reject his appointment. Deep in debt and following multiple suicide attempts, Rutledge retreated from public service for a short time. In 1798 he was elected to the South Carolina House of Representatives, where he served for two years before his demise.
Engraving of James Wilson
Born in Scotland in 1742, James Wilson emigrated to America at age 23. In the colonies, he began to study law in Pennsylvania, eventually opening his own practice. Though Wilson later became one of the few men to sign both the Declaration of Independence and the United States Constitution, he was not elected by Pennsylvania to attend the First Continental Congress. However, he did at that time publish pamphlets protesting the British Crown’s assumed legislative authority over the colonies. Wilson’s outspoken republican principles created enemies. Many mistook his emphasis on checks and balances and other principles as anti-democratic. This even led to a mob attack on his home that became known as the “Attack on Fort Wilson.”
Wilson applied his principles during his time as justice of the first Supreme Court, advocating for judicial review as a way for the Court to provide the necessary checks over the other branches of government. Wilson believed that it was the Supreme Court’s role to settle disputes between states and the federal government over jurisdiction and determine whether the federal government was acting constitutionally. His opinion in Chisholm v. Georgia (1793) moved beyond the direct issue of the case and moved into its philosophical implications, asking whether and how individual states formed a nation. During his time as Supreme Court justice, Wilson also taught courses on constitutional law at the College of Philadelphia.
By the end of life, Wilson, like Justice Routledge, fell on hard financial times, though he continued to serve as Justice. He succumbed to malaria while supposedly circuit-riding and evading creditors in North Carolina.
William Cushing Portrait, c. 1789-1810
Hailing from one of Massachusetts’s oldest and well-established families, William Cushing held a position on the Massachusetts Supreme Court from 1772 until his appointment as Supreme Court justice in 1789. Serving on the Massachusetts Supreme Court, even prior to the revolution, Cushing advocated for juries to use the court to dismiss Acts of Parliament. Additionally, Cushing impacted the abolition of slavery in Massachusetts through a series of cases referred to as the Quock Walker Case (1781). He was the first justice to address slavery as a matter of constitutional law, ruling that “Slavery is in my judgement as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. The court are therefore fully of the opinion that perpetual servitude can no longer be tolerated in our government, and that liberty can only be forfeited by some criminal conduct or relinquished by personal consent or contract.”
Cushing’s time as a Supreme Court justice has not been deeply researched, as many dismissed his impact due to his ill health and advanced age during his tenure and because he wrote only nineteen opinions. He strongly advocated judicial review, leading scholars to debate whether he or John Jay was the first Supreme Court judge while on circuit to declare judicial review over state and federal law. He served as temporary chief justice on several occasions during Jay’s absence. Cushing was the longest serving out of the original six Supreme Court justices. He held his position until his death in 1810.
Justice John Blair
Justice John Blair came from a wealthy, plantation-owning, and well-connected family in Virginia. He graduated from the College of William and Mary in 1754 and soon after began practicing law in Virginia’s General Court, though he stayed connected to his alma mater and served as the college’s representative at the House of Burgesses in 1765. During his time serving in his state’s General Court, Blair was involved in several important court cases which determined judges’ rights in the new republic, including Commonwealth v. Caton (1782) and Commonwealth v. Posey (1787). In Caton, the state court practiced an early example of judicial review. The court determined the constitutionality of a statute which granted power to the Senate and House to pardon people accused of treason.
During his time on the Supreme Court bench, Blair is remembered as a staunch Federalist and a mild and cautious man. In the early days of the republic, for example, revolts from agrarian or Jeffersonian sectors of the country deeply concerned Blair. After President George Washington crushed one 1794 uprising in Western Pennsylvania spurred by Hamilton’s new excise tax on whiskey, Blair argued that the federal government needed a stronger military and a firmer hand on state agitators. Blair continued to serve as justice until his retirement in 1796.
Justice Warren and the Judiciary Act, 1964
National Archives and Records Administration
The Judiciary Act of 1789 established the Supreme Court’s judicial review powers, though they were not specifically articulated until Marbury v Madison (1803). In addition to creating a Circuit Court, the act specified the number of justices and gave the Supreme Court jurisdiction over civil cases exceeding $500 and federal crimes. It created the positions of attorney general, United States attorney, and United States marshal. The Judiciary Act has continued to guide the judicial system’s everyday operation. It empowered key chief justices like John Marshall and Earl Warren, who is pictured this 1964 photograph viewing the document on exhibit at the National Archives for its 175th anniversary.
The Old Supreme Court Chambers, post-1933
The Supreme Court’s emergence as a powerful, prestigious institution did not emerge overnight after Marbury v. Madison in 1803. In 1800, when the Supreme Court moved from Philadelphia to Washington D.C. along with the rest of the federal government, it still was not provided with separate or even permanent accommodations. Instead, it occupied spare rooms lent by Congress until 1810, when the court moved to a space later known as the “Old Supreme Court Chamber” on the ground floor of the North Wing of the US Capitol. In 1860, the Supreme Court moved to the “Old Senate Chamber” after the Senate moved to more updated and spacious accommodations. Finally, in 1935, following the lobbying of former President and then-Chief Justice William Howard Taft for “a building of dignity and importance,” the Supreme Court gained its own permanent home.
