One part of that new government was the United States Supreme Court (USSC), which held its first meeting in 1790 and heard its first case in 1791.
The reader will be familiar with “checks and balances,” “the separation of powers,” and other foundational constitutional concepts.
In addition to its role in the system of checks and balances, the USSC serves as an agent protecting minority interests in the face of majority viewpoints. The framers of the Constitution correctly foresaw that there would be voices, like that of Senator Elizabeth Warren, demanding that the USSC issue its decisions in accord with “widely held public opinion.”
Were the USSC to operate according to Senator Warren’s stipulation, it would simply become the instrument of mob mentality.
It is the task therefore of the USSC to occasionally rule against “widely held public opinion,” when the principles of constitutional justice require it to do so. To stand against the social and political pressure of a mob majority, it must be in some way insulated, as Jonathan Turley writes:
A non-partisan, independent judiciary serves two essential purposes: it plays a vital role in preserving the separation of powers, which prevents all government power from being concentrated in one place, and it stands as a bulwark in defense of minority rights against a majority faction. To ensure its ability to perform these essential roles without being threatened by the political branches — the Congress and the executive branch — the Constitution gives federal jurists life tenure and salary protections.
Given the Supreme Court’s paradigmatic task, and given that all humans — even the nine justices who make up the USSC — are imperfect, it is no surprise that the early years of the Court saw it getting off to a rough start.
While the USSC functioned admirably, it had some individual poor performances, and some of the obstacles were the justices themselves. There were originally six justices on the Court, instead of the current nine. James Wilson was one of the original justices, serving for more than eight years on the USSC. as historian Mark Levin reports:
Wilson was appointed by George Washington in 1789. He had been one of the more influential delegates at the Constitutional Convention, but had serious financial troubles after he was appointed to the Court. He put his money into land speculation, fell into serious debt, and was put in debtor’s prison. He once had his son pay off a creditor, so that he — an associate justice of the Supreme Court — could be sprung from jail in Burlington County, New Jersey. Hounded by creditors, Wilson later left his native Pennsylvania and had to live a life on the run. After “holing up in a series of ‘dreary taverns,’” he died broke in North Carolina and was buried in an unmarked grave.
Another troubling personal situation surrounded John Rutledge, who was nominated to the Court upon the retirement of Chief Justice John Jay, as Mark Levin explains:
Rutledge, too, was appointed by Washington in 1795 — by recess appointment — and became the nation’s second chief justice. A United States senator from Rutledge’s native South Carolina wrote that “after the death of his wife, his mind was frequently so much deranged, as to be in a great measure deprived of his senses.” There was considerable opposition to Rutledge’s appointment, and he was voted down by the Senate. There had been rumors that his “mind was unsettled” and “he was becoming insane.” Rutledge’s depression was so serious that he made two failed suicide attempts, one shortly before and one soon after the Senate rejected his nomination.
While the biographies of James Wilson and John Rutledge are personal tragedies, both of them managed to serve reasonably well on the Court. More troubling were other instances, in which the personal lives of the justices were not problematic, but their rulings from the bench were disquieting.
Among that first slate of six justices were those who understood well the mechanisms of constitutional government, but did not embrace the essence of judicial impartiality, as Jonathan Turley notes:
Early in our nation’s history there were few professional standards governing the American court system. Courts were openly biased, with Federalist judges becoming virtual grand inquisitors of Jeffersonians under the infamous Alien and Sedition Acts passed during the presidency of John Adams. Judges and justices routinely ran for political office and openly engaged in political commentary from the bench. But this would change. The first university-based law school in the U.S. was founded in 1779 at The College of William & Mary in Williamsburg, Virginia, and America’s first independent law school was created in 1784 in Litchfield, Connecticut. Relatively quickly the partisanship that characterized the courts came to be tempered by professional standards that eschewed political associations and advocacy.
So it was that colleges and universities, and their law schools, played a salutary role in the formation of the USSC. Once the Supreme Court got past its bumpy start, it operated for over two centuries with a degree of professionalism and wisdom which was acknowledged even by those who disagreed with its rulings.
The occasional glaring mistakes — Dred Scott and Plessy — were not the fault of the constitutional structure, but rather of personal failings: whether of judgment or courage.
Even the harshest critics of the Court have identified the shortcomings of the USSC as either a lack of wisdom or a lack of character, and have not demanded significant changes to the framework of the judicial branch.
