When Supreme Court justices lacked prestige

OPINION:

Sparring over the appointment to fill a vacancy in the Supreme Court may have a lot of Washington drama, as illustrated by President Trump’s nomination of Judge Neil Gorsuch, but in the old days, the high court was not anything to get excited about.

Members of the Constitutional Convention relegated the judicial branch to the last and shortest article in the document. Without much debate they established the Supreme Court as head of the judicial branch but left to Congress the task of setting up lower courts as it felt necessary. And presidents, who saw the setting up of executive departments as a priority, took their time in nominating high court members. Little wonder that early judges on the court had little prestige, even in the instance of the first chief justice.

That’s the example of John Jay (1745-1829), appointed by President George Washington on Sept. 24, 1789, to head the court. Two days later — after no hearings or controversy — Jay was confirmed unanimously by the Senate, the youngest member at age 44 in the entire history of the institution. Jay didn’t assemble his cohorts for their first meeting until Feb. 2, 1790, and during the course of his tenure until his resignation in 1795, Jay presided on only four decisions. Too much unflattering time for Jay and his fellow justices was spent “riding circuit” by horseback to hear cases in the 13 circuit courts around the country.

To be sure, when the high court first met in February 1790, there were five associate justices plus Jay. There was much newspaper interest in the institution because it was the last of the three branches of the new federal government to operate, with the president and Congress old hat by then. But the first session was unexciting (only four of the six members showed up), dealing with setting rules of procedure and lasting only 10 days. During the first three years of the Jay court, it was an invisible institution: not a single case was ruled on.

Jay had a much more challenging and prestigious life before heading the high court. He served as a member of the Continental Congress from 1774 to 1779 (as president for one year), was minister to Spain and secretary of foreign affairs during the Revolutionary War, a member of the peace commission that ended that encounter with Great Britain and became a contributor to the Federalist Papers that urged the adoption of the Constitution. And he had judicial experience as well, serving as chief justice of the supreme court in his home state of New York. He also wrote New York’s original constitution and was even asked by Washington to be his first secretary of state — a post he declined before accepting the top post on the high court.

That Jay was bored with his service as chief judge is evidenced by his accepting an appointment by Washington in 1794 to negotiate a treaty with Great Britain regarding its violations of American neutrality. So Jay lived abroad during his tenure as diplomat while still a member of the Supreme Court, an obvious violation of the separation of powers doctrine by serving at the same time in two of the three constitutional branches. He became the nation’s most controversial figure in 1795 — even hanged in effigy in towns and cities — not because of his role on the Supreme Court but because the Jay Treaty was enormously controversial

Even before he returned to the United States in 1795, Jay threw his hat into the ring for governor of New York, widely thought at the time to be a promotion. Jay served as chief executive of the state for six years, until 1801.

Not surprisingly, when the post of chief justice became vacant again in 1800, President John Adams urged Jay to accept his nomination, which was again approved quickly by the Senate before Jay, not surprisingly, declined. Jay noted that the high court lacked “the energy, weight and dignity which are essential to its affording due support to the national government.”

Also in 1800, he put his hat into the presidential sweepstakes but received only one electoral vote, inducing enormous disappointment and retirement from political office.

• Thomas V. DiBacco is professor emeritus at American University.