Jay Court (1789–1795)

The ‘‘Jay Court’’ is the title attributed to the Supreme Court during the tenure of John Jay, who served as Chief Justice of the United States from October 1789 to February 1795. Jay, a prominent New York Federalist and champion of the Constitution’s ratification, was the first chief justice. During this period, the Supreme Court formally organized, admitted the first members of the Supreme Court Bar, and established many precedents defining the functions and duties of the institution.

Prominent among the associate justices who served alongside Chief Justice Jay were William Cushing, James Wilson, James Iredell, and William Paterson. Other justices at this time included John Rutledge, John Blair, and Thomas Johnson, each of whom served only briefly. Each of these individuals was selected by President George Washington and considered to be sympathetic to Federalist principles.

The Supreme Court’s membership, then only six justices, reflected geographical balance, with jurists selected from each region of the United States. This restrained sectional jealousies and facilitated the circuit riding then required of justices. The justices met twice annually to undertake Supreme Court business, with terms in February and August of each year. The Supreme Court was without a permanent home at this time, meeting in makeshift quarters in New York (1790) and then Philadelphia (1791–1800). Justices were also then required to travel outside the nation’s capital twice annually and hold court throughout a designated judicial circuit. This practice was known as ‘‘circuit riding.’’

Circuit riding required justices to interact with the citizenry and to hear arguments in circuit courts alongside district judges. Justices often complained that riding circuit required extensive travel and created difficulties when the Supreme Court considered appeals of the justices’ circuit rulings. Proponents of circuit riding asserted that it familiarized the justices with local conditions and enhanced the status of the judiciary. The justices’ frequent appeals to Congress for relief from circuit duties were largely unsuccessful in the Jay Court period, although they were excused after 1792 from repeated visits to a single circuit in the same year.

Although justices heard cases while on circuit, the docket of the Supreme Court remained small at this time. The Supreme Court did not decide its first case until 1791, and its caseload did not exceed five cases in a year while Jay served as chief justice. Decisions during this period were delivered in seriatim, with each justice issuing a written opinion declaring his view of the correct outcome. This practice was common for the early Supreme Court and did not subside altogether until the Marshall Court period (1801–1835).

Perhaps the most noteworthy Supreme Court decision from the Jay Court period is Chisholm v. Georgia (1793). In this case, the facts of which concerned the state of Georgia’s failure to pay its debt to the estate of a creditor, the justices considered whether a state could be sued by a citizen of another state without its consent, particularly in the federal courts. Georgia argued that states enjoyed sovereign immunity and could not be subjected to such suits. The Supreme Court decided to the contrary, ruling that states could be sued in federal courts without the permission of the state. The decision in Chisholm was widely opposed, because it represented a clear limitation to state sovereignty. The controversy eventually resulted in the ratification of the Eleventh Amendment (1795) removing suits against states by citizens of other states from the jurisdiction of the federal courts.

Also significant during this period were early instances of judicial review. Although the Supreme Court’s decision in Marbury v. Madison (1803) is recognized as the first instance in which the Court used judicial review to overturn a federal law, it was the Jay Court that first asserted the institution’s power to do so. In Hayburn’s Case (1792), the Supreme Court considered the constitutionality of the Invalid Pensioners Act (1792). This legislation assigned the federal courts the duty of reviewing pension petitions submitted by veterans of the American Revolution to determine their eligibility for federal pensions. Along with the constitutional issue raised by assigning nonjudicial duties to federal judges, the Invalid Pensioners Act allowed the Secretary of War to review the decisions of the courts. The justices on circuit considered several cases resulting from this legislation, reaching general agreement that the statute was unconstitutional. Ultimately, Justice Wilson’s outright refusal to consider pension petitions led to the controversy in Hayburn. However, the Supreme Court did not formally decide the merits of the case or the statute’s constitutionality. Because of congressional dissatisfaction with the delays associated with judicial consideration, new legislation was crafted to remove the circuit courts from the petition process.

The paltry docket of the Supreme Court during Jay’s tenure included little of significance for American civil liberties. However, during this time early indictments and convictions for sedition and other rebellious acts took place in reaction to civic unrest. These indictments relied on federal common law, which would prove to be controversial. The first such indictment took place in 1792, with the first conviction in 1794. The Supreme Court did not take part in either action. Criminal charges under federal common law were perceived by many as an encroachment on state sovereignty and individual rights. Proponents of federal common law argued that the common law’s basis in natural law transcended state boundaries. Opponents of federal common law, however, argued that its establishment would give the federal government—including the judiciary—unacceptably broad jurisdiction. The debate over common- law crimes continued beyond Jay’s tenure, later becoming a key conflict between the major American political factions.

In 1794, Chief Justice Jay was selected as envoy to Great Britain and assigned to renegotiate the terms of peace then in place. The terms of the treaty negotiated by Jay were highly controversial and widely viewed as favorable to the British. Jay resigned his judicial office in 1795 to become governor of New York. Jay was briefly succeeded as Chief Justice by John Rutledge, who soon vacated the office after his recess appointment expired, and he failed to achieve confirmation from the U.S. Senate.

RICHARD L. VINING

References and Further Reading

• Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia, SC: University of South Carolina Press, 1995.
• Gerber, Scott D., ed. Seriatim: The Supreme Court before John Marshall. New York: New York University Press, 1998.
• Goebel, Julius Jr. History of the Supreme Court of the United States, Volume I: Antecedents and Beginnings to 1801. New York: The Macmillan Company, 1971.

Cases and Statutes Cited

• Chisholm v. Georgia, 2 U.S. 419 (1793)
• Hayburn’s Case, 2 Dall. 409 (1792)
• Marbury v. Madison, 5 U.S. 137 (1803)
• Invalid Pensioners Act, Act of March 23, 1792, 1 Stat. 243

See also American Revolution; Common Law or Statute; Freedom of Speech and Press under the Constitution: Early History (1791–1917); Judicial Review; Marbury v. Madison, 5 U.S. 137 (1803); Natural Law, Eighteenth Century Understanding; Seditious Libel