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)

Copyright 1995