The First Supreme Court

President George Washington signed the Judiciary Act into law on September 24, 1789.  That same day, he nominated John Jay (New York) to preside as Chief Justice, and John Rutledge (South Carolina), William Cushing (Massachusetts), John Blair (Virginia), Robert Harrison (Maryland) and James Wilson (Pennsylvania) to serve as associate justices.  All had experience as lawyers or state judges. 

Neither the Constitution nor the Judiciary Act had established qualifications for service on the Supreme Court or inferior federal courts. The only constraint on the President was that the Senate would need to confirm his nominees.  President Washington selected men he believed to be of the “fittest characters” to serve on the Supreme Court.  Factors he considered included the nominee’s background and training, health, public renown, and role in the Revolutionary War. The most important criterion, however, was whether the nominee supported the Constitution. 

James Wilson – The Scottish-born James Wilson was educated at the universities of St. Andrews, Glasgow, and Edinburgh. One of the most prominent lawyers of his time, Wilson served on the Committee of Detail that produced the first draft of the U.S. Constitution. His contributions at the Convention were critical – he worked closely with Madison to consolidate national power, and shaped many aspects of the new executive branch. Wilson was prominent in arguing for the ratification of the Constitution in Pennsylvania.

John Blair – John Blair was educated in law at the college of William and Mary, receiving an A.B. in 1754 before studying law in London at Middle Temple. Blair served on the Committee that framed Virginia’s Declaration of Rights, on Governor Patrick Henry’s Privy Council, and as judge and then chief justice on the general court. He was also elected to Virginia’s high court of chancery. Subsequently he served on Virginia’s first court of appeals, and the legislature appointed him as Thomas Jefferson’s successor on a committee revising Virginia’s laws.

John Rutledge – John Rutledge was the former Governor of South Carolina and the leader of the state’s delegation to the Constitutional Convention. A major slave owner, Rutledge was a supporter of strong central government as long as slavery remained under the control of each state individually. He chaired the important Committee of Detail.

Robert Harrison – Robert Harrison began his legal career in Alexandria, Virginia where he met George Washington. He served as a lieutenant in the 3rd Virginia Regiment of the Continental Army and, later, became an aide-de-camp to General Washington as a lieutenant colonel. Harrison served as Chief Justice of the General Court of Maryland.

William Cushing – William Cushing had been the vice-president of the Massachusetts ratifying convention and, as chief justice of Massachusetts, he was an early advocate of the need for a national government to remedy the weaknesses of the Articles of Confederation. He was also a charter member of the American Academy of Arts and Sciences.

John Jay, the nation’s first chief justice, had worked tirelessly for ratification in the New York Ratifying Convention and, when his health permitted, writing the Federalist Papers.  He also had distinguished himself in the field of foreign affairs, serving as Minister to Spain and Secretary of Foreign Affairs under the Articles of Confederation.  He negotiated the Treaty of Paris that ended the Revolutionary War.  Given the importance of international relations for the fledgling United States, it is not surprising that President Washington looked favorably on Jay’s strong foreign policy credentials when selecting the leader of the country’s first national court.  President Washington wrote to Jay about his nomination as Chief Justice:

I have a full confidence that the love which you bear our Country, and a desire to promote general happiness, will not suffer you to hesitate a moment to bring into action the talents, knowledge and integrity which are so necessary to be exercised at the head of that department which must be considered as the Key-stone of our political fabric. 

The Senate confirmed all of Washington’s nominees two days later.  Citing ill health, Harrison declined to serve, despite having been confirmed.  The following February, Washington nominated James Iredell (North Carolina), who was confirmed in May 1790, after a Senate recess.  Iredell had advocated strongly, albeit initially unsuccessfully, for ratification of the Constitution in North Carolina.  

The Supreme Court met for the first time on Monday, February 1, 1790, in the Old Royal Exchange in New York.  At the time, New York was the nation’s capital. (It moved temporarily to Philadelphia later that year, then permanently to the District of Columbia.).  The justices agreed to the rules by which the court would operate and its process for admitting lawyers to practice before the court.  There were no cases on the court’s docket.  The Supreme Court  would not decide its first case for more than a year.  

In 1792, the justices revealed how much they were still under the sway of hundreds of years of judicial practice under English common law: they announced that, from then on, they would look to practices from King’s Bench and Chancery to guide the practices of the Supreme Court.  

The Supreme Court’s docket was sparse at the outset, unlike the dockets of the circuit courts.  Two justices were designated to serve as trial judges in each circuit, alongside one district court judge.   Circuit courts were convened twice a year.  Chief Justice Jay and Justice Cushing were assigned to cases in the Eastern Circuit; Justices Blair and Wilson, the Middle Circuit; and Justices Iredell and Rutledge, the Southern Circuit.  Circuit courts were located hundreds, sometimes thousands, of miles from the capital.  The justices traveled by horseback or by carriage, over poor roads or, in some places, no roads at all.