Hylton was decided without the benefit of two of the Court’s original members, John Rutledge and Chief Justice John Jay. Rutledge also did not participate in Chisholm. He had resigned in 1791 to become chief justice of the South Carolina court of common pleas. He said he was exhausted from circuit riding. He also expressed boredom over the sparse number of cases on the Supreme Court’s docket. Finally, he was exasperated that the salary of justices of the United States Supreme Court was considerably less than he would earn as a trial judge in South Carolina. His replacement, former Maryland Governor Thomas Johnson, found the rigors of circuit riding more than his health could withstand. He resigned in 1793.
Chief Justice John Jay also concluded that he could not remain on the Supreme Court if circuit riding remained a part of the job. In 1794, President Washington dispatched him to Great Britain to negotiate a treaty to resolve various outstanding commercial issues between the two countries. His efforts resulted in the Treaty of Amity, Commerce and Navigation, popularly known as Jay’s Treaty. The treaty proved to be deeply controversial at home, adding to the growing schism between so-called Pro-Administration and Anti-Administration members of Congress that eventually contributed to the formation of political parties. While Jay was in Great Britain, his supporters nominated him to be Governor of New York, a position to which he was elected. He resigned from the Supreme Court in 1795.
When John Rutledge learned that Jay had resigned, he wrote to President Washington expressing his interest in returning to the Supreme Court as Chief Justice, a position he apparently had coveted at the outset:
When the Office of Chief-Justice, of the United States, becomes vacant, I feel that the
Duty which I owe to my Children should impel me, to accept it, if of fer’d: tho’ more arduous & troublesome than my present Station, because, more respectable & honorable.
The President made the appointment in June 1795, during a Senate recess. The following month, Rutledge made an incendiary speech condemning the Jay Treaty, believing it contrary to the economic interests of South Carolina and too favorable to Great Britain. Vice President John Adams claimed that the speech was seditious. Supporters of the treaty urged President Washington to withdraw the Rutledge nomination, but he did not do so. When the Senate reconvened in December, it refused to confirm Rutledge. Consequently, he served as Chief Justice only for about six months.
Rutledge’s short tenure as Chief Justice left President Washington with a choice: elevate a sitting associate justice or cast about for an outsider. The President opted to elevate William Cushing. Cushing declined the offer, pointing to ill health.
Next in line of seniority on the court was James Wilson. Wilson had played a major role at the Constitutional Convention, one of the factors Washington had considered when appointing him to the Supreme Court in the first place. However, by 1795, Wilson’s reputation was in tatters because of a series of bad financial decisions. He had amassed huge debts investing in land schemes. Those debts proved ruinous to him and to others when the American economy went into a tailspin in 1796. Wilson was imprisoned briefly in debtors’ prisons in New Jersey and North Carolina. Somehow, he managed to continue his circuit court duties, but the President needed to appoint a Chief Justice with a better character. Washington tapped Senator Oliver Ellsworth, who also had served with distinction at the Constitutional Convention and had been the primary drafter of the Judiciary Act of 1789. Ellsworth was confirmed a day after his nomination. He served only four years, resigning due to ill health in 1800.
In assessing the achievements of the Supreme Court during its first decade, it is important to remember that there had been no national courts under the Articles of Confederation or any other time in the nation’s history. Everything was a “first” in the judiciary experiment. The Judiciary Act of 1789 hobbled the Supreme Court at the outset by committing the justices to trial work in the circuits. John Jay faulted the act for accommodating “certain prejudices and sensibilities” instead of embracing “the great and obvious principles of sound policy.” Expectations that the act would be overhauled when practice exposed its deficiencies were dashed. Moreover, the justices had been trained in the common law, and knew only its practices and traditions. They looked to history for direction in deciding their operating rules and how to deliver opinions, rather than devising innovative ways of doing judicial business in America’s new age. Additionally, the Supreme Court did not have the benefit of sustained leadership during its first decade. By 1800, it already had seen three chief justices come and go. One way to measure Congress’ low esteem of the court was that, when it passed a budget to house the government in Washington, D.C., it did not include facilities for the third branch. Instead, it housed the Supreme Court in the basement of the Senate, where it stayed until 1935.
By the time Chief Justice Ellsworth left office in 1800, the Supreme Court was perceived as the weakest of the three branches. In 1801, John Jay wrote to President John Adams:
I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity, which are essential to its affording due support to the national government, nor acquire the public confidence and respect which as to the last resort of the justice of the nation, it should possess.