The Supreme Court and Impartial Justice: The View from the 1790s

Abstract

The Supreme Court and Impartial Justice: The View from the 1790s Robert P. Frankel, Jr.1 The very first case to be placed on the Su­ preme Court docket, Van Staphorstv. Maryland, centered on the disputed terms ofa loan that two Sarah Livingston Jay’s (above) sister Catharine desper­ ately appealed to Chief Justice John Jay to appoint her husband, Matthew Ridley, Supreme Court clerk to ease their financialsituation and allowthemtolive closerto her family. Dutchbankers had madetothe state ofMaryland during the American Revolution. Chief Justice JohnJaywasfamiliarwiththe controversy, to say the least. Five years earlier he had represented the state as an arbitrator inan abortive attempt to bring about a settlement. Just as important, Jay had been a friend of the embattled Baltimore merchant who negotiated the loan with the van Staphorsts, the lateMatthewRidley, and overthe years the two men had discussed the loan. Fur­ thermore,in 1787,whenRidleymarriedCatharine Livingston, sister of Sarah Livingston Jay, he became Jay’s brother-in-law. Just after Jay’s ap­ pointment as Chief Justice and before Ridley’s untimely death, Catharine desperately appealed to Jay to appoint her husband as Supreme Court clerk. Despite ChiefJustice Jay’s intimate associa­ tion with Ridley and the van Staphorst dispute, he presided over the Court on February 8, 1791, the day that Maryland’s colorful attorney gen­ eral, Luther Martin, appeared to respond to the summons. Although the case was settled out of court before the Justices heard any arguments, there is no indication that Jay was planning to recuse himself.2 As Jay’s behavior in Van Staphorst illus­ trates, the conduct of the Justices during the Supreme Court’s first ten years raises questions regardingtheir impartiality, or at least, potential 104 JOURNAL 1994 threats to their impartiality. The issue can be broken down into two broad, but overlapping, categories. First, the Justices engaged in certain extrajudicial activities that posed a possible con­ flict with the Justices’ duties on the bench. Most notably, Chief Justices John Jay and Oliver Ellsworth both sailed to Europe to undertake majordiplomaticmissionswhileremainingmem­ bers ofthe Court. Second, as revealed inthe Van Staphorst example, the Justices often failed to disqualify themselves in cases with which they possessed some personal association. Yet, despite the fashion in which Justices of the Supreme Courtapproachedtheirduties inthe 1790s, it would be a mistake to conclude that no one recognizedthe problem ofbias. By no means did an “anything goes” mentality prevail. Con­ gress legislated ethical guidelines onlyfor lower federal courtjudges,butthere is evidencethatthe Justices were sensitive enough to the issue of impartialitythat—at certain times and in certain instances—they voluntarily checked their own behavior. The most important example of such restraint is that the Justices were generally dili­ gent about recusing themselves when they con­ fronted a case that they had argued, or heard, in another forum. Furthermore, when it appeared that a Justice might be compromising himself, voices were raised in protest. Individual mem­ bers of Congress and newspaper columnists— principally from the Jeffersonian opposition— didmakesomeattemptto scrutinizethemembers ofthe Court. Of course, the conduct of the Justices must also be viewed in the context of the prevailing legal canons ofthe 1790s. Many ofthe practices ofthebar duringthe Court’sfirst decade canraise eyebrows when perceived according to modem ethical standards but were considered perfectly acceptable at the time. For example, it was not unheard offor a lawyercasuallyto switchsidesin a case. When Oswaldv. New Yorkwasbefore the Supreme Courtintheearly 1790s, Jared Ingersoll, one ofthe mostprominent members ofthe Phila­ delphia bar, first represented the plaintiff and then the defendant.3 Furthermore, the attorneys general ofthe United States in the Washington and Adams administrations routinely arguedbe­ fore the Supreme Court not as advocates for the nation but in a purely private capacity. Edmund Randolph of Virginia, the first attorney general, Edmund Randolph served as the first Attorney General and the second Secretary of State in President George Washington’s cabinet. While Attorney General, he argued Chisholm v. Georgia as a private attorney. represented the plaintiff in the decade’s most consequential case, Chisholm v. Georgia.* And not until 1799 were the United States attorneys accorded even the most modest of salaries to supplement the fees and allowances that accrued to them in performing their...