Since President Obama nominated Merrick Garland to the Supreme Court in early 2016, there has been extensive discussion about the highest court and its precedent, size, and nominations. This debate accelerated into overdrive last week after the passing of Justice Ruth Bader Ginsburg and President’s Trump’s announcement that he intended to fill the seat with Judge Amy Coney Barrett. The origins and history of the Supreme Court suggest that reform and constant change are central to the court’s character.
The Constitution says very little about the Supreme Court. It determines that there should be an institution, but left it up to future leaders and generations to fill out the details: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The first federal Congress set about establishing the federal judiciary in the Judiciary Act of 1789. They created 13 federal districts, a chief justice, and five assistant justice positions for the Supreme Court. The 13 districts were divided into three circuits, administered twice per year by two justices and a district judge.
President George Washington picked up the mantle and nominated individuals to these seats. He selected John Jay of New York as chief justice, and John Rutledge of South Carolina, James Wilson of Pennsylvania, William Cushing of Massachusetts, Robert H. Harrison of Maryland, and John Blair of Virginia. Washington considered a few factors when selecting justices. First, Washington insisted that court nominees had supported the new Constitution and, ideally, a strong federal government.
For example, in October 1787, James Wilson gave a speech at a public meeting in Philadelphia supporting the proposed Constitution and arguing in favor of a strong executive. Washington read the speech in the General Advertiser and liked it so much that he sent the speech to David Stuart, a friend and editor, and asked Stewart to republish it. Appointing Wilson to the bench was the logical next step.
By selecting justices who understood the importance of a powerful executive, Washington could be fairly confident his nominees would approve of his administration’s policies — and events proved him right. In 1794, a rebellion broke out in western Pennsylvania over a whiskey excise tax. Washington decided to call up the local state militias to suppress the insurrection under a law passed in 1792. The law authorized the president to use militias in the event of foreign invasion or domestic rebellion, but required the president to submit evidence to a Supreme Court justice that military force was required. In 1794, Secretary of State Edmund Randolph delivered the evidence of the rebellion to Justice James Wilson, who granted Washington approval to call up the Pennsylvania, New Jersey, Maryland, and Virginia militias.
Second, Washington selected justices from many key states. By choosing justices that represented geographic and experiential diversity, the president worked to build emotional ties with the new federal government and foster nationalism among citizens across the country.
Despite the Supreme Court’s prestigious position today, 18th-century justices endured a very different experience. Justices received a salary, but the compensation was relatively low and most officials had to step away from their primary careers to serve on the bench. As a result, most justices took a financial hit to join the court. Furthermore, the position was not a cushy one. In order to attend circuit hearings in districts across the country, justices spent months away from their homes and families. They rode thousands of miles on dusty roads, were jostled in uncomfortable carriages, and slept in lackluster lodgings. Sometimes the food was rotten and the beds infested with bugs.
Justices complained constantly about the conditions. In his circuit diaries, Chief Justice Jay noted that on Oct. 7, he “arrived at Kinderhook— Servts. and Horses at Shethers Tavern—tolerable.” A few days later, he “dined at the widow Wilcox’s—a bad house.” Justice Iredell agreed and wrote, “I did think…that at least a temporary change should take place. I certainly however can no longer agree to be placed on the unequal and distressing journey upon which I have so long been…although I have some hopes Congress will amend the law in such a manner as to express the sense whether there will or will not be rotation.”
The relatively short tenures of justices on the bench also revealed their displeasure with the position. Most of the justices served fewer than 10 years before retiring and returning to their families. The president then struggled to fill the openings. Both Charles Cotesworth Pinckney and Edward Rutledge, two of Washington’s friends, turned down offers to be nominated to the court. They were two of many.
In response to the justices’ complaints, Congress passed a Judicial Reform Act in 1801 that created a level of circuit courts to hear appeals. This level of courts also eliminated the unpleasant travel requirements imposed on the Supreme Court justices.
Jefferson overturned this legislation in 1801 and reduced the court to five justices, but later generations adopted additional reforms. Congress expanded the court to seven justices in 1807, nine in 1837, and 10 in 1863. Although Congress reduced the court to seven justices during President Andrew Johnson’s tempestuous administration to prevent the president from making unpopular appointments, it then expanded the court back to nine justices after Johnson left office. And of course, Senator Mitch McConnell ensured that the court would remain at eight justices for over a year from 2016 to 2017.
So what does this history tell us about the institution? From the very beginning, the delegates to the Constitutional Convention left room for the court’s ongoing evolution by leaving it up to Congress to determine the size and shape of the institution. Additionally, the magisterial Supreme Court of the 21st century is a far cry from the humble origins of 1789. Most members of the founding generation expected justices to serve relatively short tenures. The concept of justices that would serve lifetime appointments and be treated with unquestioned deference would have struck most 18th-century Americans as shockingly monarchical and aristocratic. Reform and ongoing change were much more in character with the judicial system envisioned by the founding generation.