The First Supreme Court

Steps and Missteps Developing Institutional Identity

In 1793, President Washington and his cabinet became enmeshed in the first of a series of foreign affairs crises that raised complex constitutional issues. When war broke out in Europe that year, France contended that the Franco-American Treaty of 1778 granted it special rights in the event it went to war against a country other than the United States.  Specifically, France contended that the treaty allowed it to commission privateers in the United States to aid its war efforts.  American public opinion was split.  Many felt loyal to France, because it had assisted the colonies during the American Revolution.  Others sided with Great Britain, America’s major trade ally.   President Washington issued a Proclamation of Neutrality for the United States.

In July 1793, the President asked the Supreme Court for advice on twenty-nine issues related to the Franco-American Treaty and the imminent departure of a French privateer from an American port.  Almost a month later, Chief Justice Jay on behalf of the Court wrote a letter to the President in which he declined to provide the advice.  He reasoned that the Supreme Court was the court of last resort and should not decide legal matters unless they were brought to the court in actual litigation.   Moreover, Jay explained, the justices believed that it was important to maintain the “[1]ines of separation drawn by  the Constitution between the three Departments of Government,” which as a practical matter meant that  the three departments are “in certain [r]espects checks on each other.”   Using the same rationale, Jay similarly rebuffed Secretary of the Treasury Alexander Hamilton, who had hoped to win the Court’s endorsement through an advisory opinion of his plan for legislation to have the national government assume the Revolutionary War debts of the states.  

Seriatim and the Opinion of the Court

Apart from its refusal to issue advisory opinions, the Supreme Court struggled during its first decade to establish its own institutional identity.  Its case load was largely insignificant. The justices themselves spent more time apart attending to their circuit-court duties than they did together deciding cases as members of the Supreme Court and working to establish the Court’s place in the new national government.  

Moreover, when the Supreme Court did begin to issue decisions from cases on its own docket, the justices again chose to remain in the shadow of common-law traditions, just as they did when they looked to Kings Bench and Chancery as a guide for their internal practices: they followed the centuries old English judicial practice of announcing their opinions seriatim.  That is, each justice, in order of seniority, explained his understanding of the facts and the proper resolution of the case. The seriatim method of announcing opinions means that there is no controlling opinion of the court.  Cases do not announce broader legal principles or legal doctrines.  The seriatim method of announcing opinions encouraged each Justice to think and write independently of his colleagues.  There was little need to confer and debate about the proper resolution of cases, or to collaborate and even compromise on opinions to give them the added heft of being the opinion of the court. Moreover, the Supreme Court had no official way to report its opinions.  Individual opinions appeared in newspapers, but the decisions of the court were not reported systematically.