The Judiciary Act was admittedly experimental. It generated frictions that raised questions about the doctrine of separation of powers and judicial independence. As mentioned previously, Congress chose to staff the circuit courts with Supreme Court Justices and district court judges to save the cost of creating more federal judgeships. President Washington also sought to take advantage of the justices’ circuit-riding duties. The justices would be the only federal officials in contact with every region of the new nation. The President apparently viewed the judges more as his advisors in the model of the Privy Council in England than as members of an independent and co-equal branch of the national government.
There were a few points of initial friction about the doctrine of separation of powers and judicial independence:
In April 1790, President Washington made the following request of the justices of the Supreme Court:
As you are about to commence your first Circuit, and many things may occur in such an unexplored field, which it would be useful should be known; I think it proper to acquaint you, that it will be agreeable to me to receive such Information and Remarks on this Subject, as you shall from time to time Judge expedient to communicate.
The justices apparently did not find the President’s request for informal communications between the two branches objectionable. They agreed to make such reports.
While acting as an advisory board was not objectionable to the Supreme Court, their circuit-riding duties did raise some objections:
We really, Sir, find the burdens laid upon us so excessive that we cannot forear representing them in strong and explicit terms. On extraordinary occasions, we shall always be ready, as good citizens, to make extraordinary assertions; but while our country enjoys prosperity, and nothing occurs to require or justify such severities, we cannot reconcile ourselves to the idea of existing in exile from our families, and of being subject to a kind of life, on which we cannot reflect, without experiencing sensations and emotions, more easy to conceive than proper for us to express.
Congress apparently did not consider the justices’ protests a claim that Congress had exceeded its constitutional authority when it assigned them to serve on the circuit courts as well as on the Supreme Court. Congress responded to complaints about circuit-riding by directing the Attorney General, an executive branch office also created by the Judiciary Act, to report to it whether the 1789 statute needed to be revised. For years, however, Congress rejected suggestions from the Attorney General that justices be relieved of their circuit court duties. Reasons ranged from the expense and growth of a judicial bureaucracy if circuit courts were staffed with additional judges, to the belief that Supreme Court justices should not be isolated from the activities in different parts of the country. Like the President, Congress believed that having the justices be familiar with local conditions while also taking federal law to the hinterlands would help to form a connection between the people and the new national government.
The early years of the Supreme Court raised practical questions about separation of powers theory. For example, the Constitution does not identify Supreme Court justices as trial judges except in the exercise of the court’s narrow original jurisdiction. The Judiciary Act required the justices to serve regularly as trial judges on circuit courts. A more serious question respecting separation of powers was whether Congress and the President had the constitutional power to give the justices extra-judicial responsibilities unrelated to deciding cases. In 1792, for example, Congress enacted the Invalid Pensions Act. It required veterans of the Revolutionary War seeking disability benefits to apply to federal circuit courts. Circuit court judges were to decide the merits of each application and then certify their findings to the Secretary of War. The Secretary of War then would decide whether to hold each case in abeyance pending further action by Congress.
Chief Justice Jay and Justice Cushing (sitting circuit judges for the Eastern circuit), Justices Blair and Wilson (Middle circuit) and Justice Iredell (Southern circuit) refused to undertake their assignments under the act. They sent letters to President Washington contending that the law violated separation of powers because it gave them non-judicial responsibilities.
President Washington informed Congress of the justices’ objections. At the next Term of the Supreme Court, United States Attorney General Edmund Randolph requested a petition for a writ of mandamus instructing the circuit courts to comply with their responsibilities under the Invalid Pensions Act. (Hayburn’s Case, 1792) The Court took the petition under advisement until the next Term, after some procedural squabbling with the Attorney General. Before the Supreme Court decided the case, however, Congress enacted a statute relieving the circuit-court judges of the responsibility for processing applications for veterans’ disability benefits.
Individually, the justices did not object to being assigned some non-judicial responsibilities. For example, President Washington appointed Chief Justice Jay to sit with the Vice President, the Attorney General and the Secretaries of State and Treasury on the Sinking Fund Commission. Secretary of State Alexander Hamilton had created this commission to decide how to use surplus revenues to liquidate the nation’s Revolutionary War debt. Jay even provided the Commission an opinion on the legality of its proposal to repurchase some of the public debt. Notably, Jay wrote only for himself, not for the court.
The President also appointed John Jay and then Oliver Ellsworth to serve as foreign envoys while they were on the Supreme Court. Neither objected. Jay simultaneously was Chief Justice and Ambassador to Great Britain; Ellsworth, Chief Justice and Minister to France. All presidential appointments to non-judicial posts were made with the approval of the United States Senate.
Perhaps there were no objections to these extra-judicial assignments because they were not directed to the Court as a whole. The Justices did balk, however, when they were asked as an institution to provide advisory opinions to the other branches about the legality of proposed legislation or other conduct.