The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth

9. An Assessment

9 AN ASSESSMENT Society in the late twentieth century-particularly political societyis usually viewed primarily in terms of conflicts of values and interests. From this viewpoint, the Supreme Court's greatness resides in its ability to resolve conflicts and impose its judgments upon others-particularly upon other governmental units. Accordingly, the modern paradigms of great Supreme Court decisions are Marbury v. Madison and Brown v. Board of Education. In the first case, Federalist Justices whose coalition was out of power tweaked the nose of the dominant coalition led by ThomasJefferson and reaffirmed the Court's authority to use the power ofjudicial review to overturn political branch decisions. In the latter case, the Court struck boldly at a national disgrace when the political branches were morally paralyzed. In each of these cases, the Court was in conflict with powerful societal forces and firmly reiterated its constitutional role as a shield against abuses of governmental power. These were great cases because the Court was opposing governmental policy rather than supporting it. The abiding theme of the early Supreme Court, however, was precisely to the contrary. The Court sought to support the political branches of the new federal government, not to oppose them. In correspondence with his initial appointees to the Court, President Washington stressed that the Court was "the Key-stone of our political fabric" and "the Chief Pillar upon which our national Government must rest."l The President and his nominees fully understood that the new government was an experiment that might fail and that judicial opposition to the government would have been disastrous. In addition to seeking individuals who would support the new government , the President sought men whose public reputation would enhance 1. See 1 DHSC 11, 21-22, 29, 35, 51, 58. 247 248 THE SUPREME COURT IN THE EARLY REPUBLIC the government's political legitimacy. ChiefJustice Jay exemplified this concern for public reputation. His credentials were political rather than professional. Jay had virtually no prior judicial experience, but he was widely respected for his extensive national service and sound judgment in the realm of foreign affairs. Although Jay's service on the Court was brief and his only major opinion was in the Chisholm case, his appointment was a success because his presence assured the nation that the Court would be led by a man of sound judgment. Chief Justice Ellsworth had significant prior judicial experience, but his appointment was in the same vein as Jay's. At the time of his appointment , Ellsworth was essentially a legislator. From 1789 to 1796, he served as the de facto leader of the Senate and earned a reputation as a tough, hardworking legislator who was sincere and fair-minded. A fellow Connecticut lawyer who respected him wrote that Ellsworth's service in the Senate had "accustomed [him] to view things as a politician, rather than a lawyer." In the wake of the Rutledge fiasco, President Washington needed a Chief Justice with solid Federalist credentials and an equally solid reputation for sound judgment. Ellsworth fit the bill. Even at the height of the controversy over the Sedition Act, Ellsworth's harshest critics conceded that portions of his grand jury charge reaffirming the legitimacy of common-law crimes did him "the utmost hondr as a judge, and as a man."2 Needless to say, ChiefJustices Jay and Ellsworth firmly supported the new government. For example, both provided the President with private advisory opinions. Jay concluded his first grand jury charge by strongly affirming "the Duty and Interest ... of all good Citizens ... to support the laws and the Government." Similarly, Ellsworth stated in his first charge, "The national laws give to the whole, harmony of interest, and unity of design. They are the means by which it pleases heaven to make of weak and discordant parts, one great people." The importance of this theme of harmony is emphasized in a religious tract that Ellsworth participated in writing shortly after leaving the Court. "The design of all government," explained the tract, "is to make every one feel the relation in which he stands to the community, and to compel him to conduct as 2. Letter to David Daggett (Apr. 20, 1798) (CtY). For Ellsworth's critics, see chapter 5 at 151. AN ASSESSMENT 249 becomes that relationship." In light ofthis conviction,judicial opposition to the new government would have been an anathema.3 In theory, the desire for harmony might have...