John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 8

negotiations of 1782, and possessed the political backing of the
powerful Livingston family of New York.
The Judiciary Act provided for two terms of court annually, one
commencing the first Monday of February, and the other on the first
Monday of August. On February 2, 1790, the Court opened its doors
for the first time in an upper room of the Exchange in New York City.
Up to the February term of 1798 it had heard but five cases, and until
the accession of Marshall it had decided but fifty-five. The justices
were largely occupied in what one of them described as their "post-boy
duties," that is, in riding their circuits. At first the justices rode in pairs
and were assigned to particular circuits. As a result of this practice, the
Southern justices were forced each year to make two trips of nearly two
thousand miles each and, in order to hold court for two weeks, often
passed two months on the road. In 1792, however, Congress changed
the law to permit the different circuits to be taken in turn and by single
justices, and in the meantime the Court had, in 1791, followed the rest
of the Government to Philadelphia, a rather more central seat. Then, in
1802, the abolition of the August term eased the burdens of the justices
still more. But of course they still had to put up with bad roads, bad
inns, and bad judicial quarters or sometimes none at all.

Yet that the life of a Supreme Court justice was not altogether one of
discomfort is shown by the following alluring account of the travels of
Justice Cushing on circuit: "He traveled over the whole of the Union,
holding courts in Virginia, the Carolinas, and Georgia. His traveling
equipage was a four-wheeled phaeton, drawn by a pair of horses, which
he drove. It was remarkable for its many ingenious arrangements (all of
his contrivance) for carrying books, choice groceries, and other
comforts. Mrs. Cushing always accompanied him, and generally read
aloud while riding. His faithful servant Prince, a jet-black negro, whose
parents had been slaves in the family and who loved his master with
unbounded affection, followed."* Compared with that of a modern
judge always confronted with a docket of eight or nine hundred cases in
arrears, Justice Cushing's lot was perhaps not so unenviable.
* Flanders, "The Lives and Times of the Chief-Justices of the Supreme
Court," vol. II , p. 38.
The pioneer work of the Supreme Court in constitutional interpretation
has, for all but special students, fallen into something like obscurity
owing to the luster of Marshall's achievements and to his habit of
deciding cases without much reference to precedent. But these early
labors are by no means insignificant, especially since they pointed the
way to some of Marshall's most striking decisions. In Chisholm vs.
Georgia,* which was decided in 1793, the Court ruled, in the face of an
assurance in the "Federalist" to the contrary, that an individual might
sue a State; and though this decision was speedily disallowed by
resentful debtor States by the adoption of the Eleventh Amendment, its
underlying premise that, "as to the purposes of the Union, the States are
not sovereign" remained untouched; and three years later the Court
affirmed the supremacy of national treaties over conflicting state laws
and so established a precedent which has never been disturbed.**
Meantime the Supreme Court was advancing, though with notable
caution, toward an assertion of the right to pass upon the
constitutionality of acts of Congress. Thus in 1792, Congress ordered
the judges while on circuit to pass upon pension claims, their
determinations to be reviewable by the Secretary of the Treasury. In
protests which they filed with the President, the judges stated the
dilemma which confronted them: either the new duty was a judicial one
or it was not; if the latter, they could not perform it, at least not in their

capacity as judges; if the former, then their decisions were not properly
reviewable by an executive officer. Washington promptly sent the
protests to Congress, whereupon some extremists raised the cry of
impeachment; but the majority hastened to amend the Act so as to meet
the views of the judges.*** Four years later, in the Carriage Tax
case,**** the only question argued before the Court was that of the
validity of a congressional excise. Yet as late as 1800 we find Justice
Samuel Chase of Maryland, who had succeeded Blair in 1795,
expressing skepticism as to the right of the Court to disallow acts of
Congress on the ground of their unconstitutionality, though at the same
time admitting that the prevailing opinion among bench and bar
supported the claim.
* 2 Dallas, 419.
** Ware vs. Hylton, 3 ib., 199.
*** See 2 Dallas, 409.
**** Hylton