Vol. 5 No. 9 (September, 1995) pp. 219-222
THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS
OF JOHN JAY AND OLIVER ELLSWORTH, by William R. Casto. Columbia,
South Carolina: University of South Carolina Press, 1995. 292 pp.
$49.95
Reviewed by Barry Friedman, Vanderbilt University School of Law
No one will gainsay that the Supreme Court's very early history
often is neglected by historians. Ask anyone about the
"early" Supreme Court and they are likely to tell you
about John Marshall and MARBURY V. MADISON, as though it all
began there and never mind the first roughly fifteen years.
William Casto s interesting book on the very early years of the
Supreme Court takes us back before familiar beginnings, and in
doing so provides insight into not only many issues of that day,
but of our day as well.
This book is, chronologically, the first in a series that covers
the Supreme Court s history, organized with reference to the
presiding Chief Justice. It is common to study or discuss the
Supreme Court in periodic blocks defined by the sitting Chief
Justice. Witness our familiarity with the Warren Court (which
gave us BROWN V. BOARD OF EDUCATION) and the Rehnquist Court
(which cut back on the civil liberties advances of the Warren
Court). Common as the convention is, it is a misleading one, for
what the Supreme Court is doing at any given time may have little
to do with the proclivities or leadership of the Chief Justice.
Casto's book makes the point perfectly.
It may be easiest to begin with what Casto does not do. Take the
title, and the Chief Justice convention. While the book is indeed
about the early years of the Supreme Court, it has surprisingly
little to say about Ellsworth and Jay's relationships with the
courts they led. There is somewhat more about Ellsworth in the
book (Casto is an Ellsworth biographer), but the focus is on
Ellsworth's prominent role as one of the architects of the
Judiciary Act of 1789. The point of the observation is not to
highlight a gaping omission by Casto, but recognition of a point
he makes repeatedly and well. The Supreme Court in its early
years was not a cohesive collegial body. The reasons for this
were many, but among them were a slow-building docket and the
fact that court members spent most of their time cast to the
winds riding circuit. In addition, and though there is little
significance to this, it seems from the literature of the period
that some court members spent a fair amount of their time sick
and unable to attend. Whatever the reasons, today's picture of a
court ensconced in one building and meeting regularly to hear
arguments and discuss cases, or even to exchange memoranda among
chambers, could hardly be further from the late 18th Century
reality. Dispersed as the Court was, and with most of the work
done on circuit, neither Ellsworth nor Jay seems to have exerted
a great deal of influence administratively or ideologically; much
of this story -- despite the book s title and the series
organization -- is not theirs.
A tad more disappointing is that the book did not turn out to be
exactly what it promised (a description of a court whose work was
mostly in the area of national security and foreign affairs) nor
even what one might have expected. Given the battle between the
Supreme Court and the political branches in
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Marshall's time, and the fight between nationalizing Federalists
and state-centered anti-Federalists that preceded Marshall, one
would have thought a book about the early years would address
these themes. Instead, Casto tells us "most (58%) of the
cases from the Supreme Court's first decade had significant
national security and foreign affairs implications." (p.3)
Casto thus tempts the reader with an unexpected thesis, but does
not carry through in a fulfilling way. The national security and
foreign affairs topics are discussed, primarily in one long
chapter on "A National Security Court," and one on
"National Security and Federal Criminal Law," but Casto
s unique focus does not really work. For example, Casto seems to
include among national security issues revenue and sedition
cases. Sedition cases were as much about partisan wrangling as
they were truly about national security, however, and revenue is
a national security issue in a sense, but in that sense almost
everything is. While trying hard to make his descriptive thesis
work, Casto unfortunately neglected the antecedents of the great
battles that loomed on the horizon following Jefferson's
selection as President and Marshall's taking his seat on the
Supreme Bench.
Yet, despite these shortcomings, Casto's work is a fascinating
and illuminating one. It captures precisely what the first part
of the title suggests, the early years of the Supreme Court.
While the book lacks a certain coherence, it nonetheless touches
on many subjects of deep interest, among them the Philadelphia
Convention's struggle over a federal judiciary, Ellsworth's
framing of the first judiciary act, the national security cases,
federal criminal common law, a bit on state's rights, and
extrajudicial activities of the Justices. In essence Casto offers
a potpourri of the issues arising from creation of a new
judiciary.
One of the highlights of the book is the extended discussion of
the Madisonian Compromise as it played out through the drafting
of the Judiciary Act of 1789. It is familiar history that the
delegates to the constitutional convention, unable to agree on
the need or good sense of a system of lower federal courts,
punted the question to successive Congresses. The battle, as was
common, was between those who hoped lower courts would exert a
nationalizing influence, and those who were jealous of state
prerogatives and feared such an influence. Casto picks up the
thread, showing how Ellsworth, and Congress, resolved matters in
a way that granted federal jurisdiction to lower courts where it
was most needed, while always solicitous of state judicial
prerogatives. In this sense, federal jurisdiction was utilized in
a highly instrumental way.
Indeed, the book s most important message may be with regard to
the proper uses of federal courts. While there seems today to be
a mad scramble to federalize as many criminal law cases as
possible, often with higher penalties that entice prosecutors to
federal court, Casto tells us the original district courts had
punishment ceilings so low that they "almost never tried
criminal cases." Of course, the federal circuit courts were
available, and in the face of congressional non-action these
courts even fell back on common law to prosecute crimes against
the nation, but here too one is left with the distinct impression
such prosecutions only occurred when a national interest truly
existed that required circumventing the state courts. Similarly,
in order to avoid pulling all debt cases out of state court,
Ellsworth's judiciary act contained an amount-in-controversy
requirement, setting the precedent for a practice utilized yet
today in diversity cases. Casto makes the important point that in
a pre-17th Amendment world Senators truly were
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representative of state interests, and thus solicitude for the
states was a key factor in fashioning the work of the federal
courts. The only place Casto seems to go astray is in the odd
conclusion that although federal jurisdiction was shaped in the
18th Century instrumentally to further national goals, today
there is "a shared assumption that the scope of federal
jurisdiction should be determined by general principles more or
less unrelated to the outcome of particular cases." (p.52)
Perhaps Casto sees federalization of crimes, the Violence Against
Women Act, proposed limits on the use of federal courts in tort
cases while federalizing tort law, proposed limits on habeas
corpus jurisdiction and the like differently than I do, but I
suspect Congress throughout history generally has followed
Ellsworth's lead in using federal courts to serve national ends.
The enduring thread of Casto's book, however, and one that could
have provided an entire thesis, is the extraordinarily pragmatic
approach the Supreme Court Justices took to their work in the
early years. Constitutional government is so familiar to us we
easily forget these folks were making it up as they went along.
While this was true of all three branches, Casto repeatedly
demonstrates how pragmatic creativity more than anything else
carried the Court through its work. When the Justices were
assigned to hear invalid war pensioner's claims subject to
reversal by the Secretary of War, they all -- riding circuit --
declined on separation of powers grounds: Article III courts
could only render final judgments. Yet, several of the Justices
then fudged matters serving as "commissioners" to see
that this vital work was done. When George Washington formally
asked for advisory opinions in the Correspondence of the
Justices, the Court declined on separation of powers and
justiciability grounds, but individual Justices continued to
render such opinions informally and the Court hastened to decide
a case that would provide answers. The great decision in HYLTON
V. U.S. resolving the authority of the national government to
impose a carriage tax was transparently trumped up. Hylton's
sixteen dollars at issue hardly met the amount-in-controversy
requirement, so he stipulated that he had "125 chariots for
the conveyance of persons . . ." and owed $2,000. (p.
102-03). Even in the face of a jurisdictional requirement that
the amount in controversy EXCEED $2,000, the Court resolved the
case on the merits. Repeatedly Casto shows us how addressing
national interests motivated the Court far more than principle or
existing rules.
Oddly enough, Casto overlooks his own point when trying too hard
to explain the rules that governed constitutional judicial review
in pre-Marbury days. Casto tells us that the Court almost
unanimously was of the view that it had the power to strike acts
of Congress, and then Casto tries to explain how interpretation
worked. Repeatedly, however, he seems forced to deal with
conflicting evidence he himself presents. The Court would not
rely on the framers' intent (p.230), except Paterson and Chase
seemed to do so (p.231) and in any event the ratifier s' intent
was important (p.234). Casto seeks to explain away the notion
that the Justices relied upon supraconstitutional principles
(p.236) in the face of evidence he identifies to the contrary
(p.238) and after frequently telling us how natural law
principles frequently governed the Justices' action. While
Casto's attempt to make sense of the somewhat-conflicting
evidence is admirable, what stands out is how in the area of
constitutional interpretation, as in so much else, the Justices
essentially were making it up as they went along. Consistency was
far too much to expect under the circumstances. Too many would-be
constitutional interpreters of today are sanctimonious about the
One True Way to
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bring life to that document, yet those charged with doing so in
the early years acted far more out of a sense of the necessary
and possible than out of any formalistic interpretive method.
Although not precisely what one might have expected, Casto's
chronicle of the early court is an interesting and informative
read. While much here is familiar, much else is not. And while
Casto gets lost too much at times in the cases, the broader
story, of creating a nation out of whole parchment, is a telling
one.
REFERENCES:
HYLTON V. U.S. 3 U.S. 171 (1796)