John Jay, Judicial Independence, and Advising Coordinate Branches

Abstract

John Jay, Judicial Independence, and Advising Coordinate Branches Ene Sirvet and R.B. Bernstein As the first President of the United States, George Washington had to invent the presidency step by step. So, too, as the first ChiefJustice of the United States, John Jay had to determine what that post meant, what duties it entailed, and how the ChiefJustice should shape the Supreme Court and the federal judicial system. In the Constitution’s first years, all federal officeholders were uncertain how the new sys­ tem would work. They thus had to be vigilant about both the issues they dealt with and the im­ plications ofthose issues. Chief Justice Jay grasped these important points firmly. He had a vision of the roles that the federal judiciary would play in the constitu­ tional system, and sought whenever he could to articulate and defend that vision. He envisioned an independent federal judicial branch, led by an independent Supreme Court; these courts would wield the full range of powers needed to vindicate their independence, to adjudicate with fairness and professionalism the cases coming before them, and to serve the general good. In a notable paradox having its roots in Ar­ ticle III ofthe Constitution, however, Jay had to defend the federal courts’ independence and in­ tegrity by disclaiming power in certain cases. PresidentWashington and members ofhis admin­ istration regularly asked Jay or the Court to ad­ vise the government on a variety of issues. Jay thus faced a thorny problem: Although he wanted the Constitution to succeed and although he had cordial relations with all the officials of the executive branch, he believed that neither he nor the Court could provide official advice to the executive branch. When the executive branch requested official advice from the ChiefJustice or the Court, Jay either disclaimed the Court’s power to render an advisory opinion or doubted the necessity ofsuch opinions. In most cases, he was able to provide the needed advice by treat­ ing the request as a private matter calling for his private opinion. On April 3, 1790, as the Justices were about to begin their first circuit riding assignments, they received a letter from President Washing­ ton. Citing his belief that “the Interpretation and Execution of[the] Laws” ofthe United States would be vital to the American people’s happi­ ness, Washington stressed “that the Judiciary System should not only be independent in its operations, but as perfect as possible in its 24 JOHN JAY The House of Representatives requested that Attorney General Edmund Randolph (above) prepare a report on how the federal courts functioned during their first year. Consequently, ChiefJustice John Jay decided to w ithhold his advice on restructuring the federal courts, preferring to defer to the legislative and the executive branches. formation.” He therefore assured the Justices of his willingness to “receive such Information and Remarks” on the structure and operations of the judiciary “as you shall from time to time judge expedient to communicate.” The President’s let­ ter expressed friendly encouragement for the Justices as they launched the first sessions offed­ eral circuit courts. Although he did not perceive or intend it, however, his letter also foreshad­ owed conflicts between his professed desire for an independent federal judiciary and his need to receive advice and guidance from the officials of the new government.1 By September 13, 1790, after discussions with his colleagues in August,2 Jay drafted a re­ ply to come from the Court. He sent copies to each Associate Justice, whom he asked “to re­ turn it with such Alterations and Corrections as You may think it requires.” Jay pledged to “in­ corporate such additions and make such other alterations as we may all appear to agree in.”3 Although Jay subjected the 1789 Judiciary Act to rigorous criticism on administrative and constitutional grounds, his draft is a model of tact. Jay questioned Congress’s decision to re­ quire Supreme Court Justices to serve on the cir­ cuit courts, because it disregarded the bright line that the Constitution’s Article III drew between the Court’s original jurisdiction and its appel­ latejurisdiction. Jay pointed out the danger that, should a circuit court’s decision be appealed...