The Trials of Chief Justice Jay

PrintPrintEmailEmailIn the public mind there has always clung to the person and the office of a justice of the United States Supreme Court an aura as close to priestliness as our secular political system admits of. It seems fitting, somehow, that the white marble building in which the Court deliberates strongly resembles a classical temple.

Given the fact that judges are human beings who in many cases have risen to the bench from the pragmatic world of politics, this aura is of course a fantasy. Still, it always comes as a shock when controversy surrounds a member of the Court, as it did last year when President Johnson’s nomination of his friend and appointee Justice Abe Portas to be Chief Justice ran into so much opposition in the Senate Judiciary Committee that Mr. Portas asked the President to withdraw his name.

The event was by no means without precedent. A century ago Ulysses S. Grant had not one but two candidates for Chief Justice turned down: first Attorney General George H. Williams, because it was felt he lacked the necessary legal expertise, and then Caleb Gushing, because he had allegedly been proslavery during the Civil War. The extended hearings on Justice Portas raised two quite different and more sensitive questions: May a justice of the Supreme Court rightfully engage in extrajudicial activities while he is on the bench? and, May those activities include giving confidential political advice to the President who nominated him?

For certain kinds of extrajudicial service, even controversial service, the Court has known ample precedent. One thinks immediately of the most recent example, Chief Justice Earl Warren’s presiding over President Johnson’s commission to ascertain the facts about the assassination of President Kennedy; the wrangling over what quickly became known as “the Warren Report” still has not died. And many will recall the service of Justice Robert H. Jackson as a prosecutor at Nuremberg; the Chief Justice at that time, Harlan Fiske Stone, publicly questioned the propriety of such activity on Jackson’s part and complained to President Truman that Jackson’s prolonged absence placed an extra burden on the other justices. Controversial or not, such public assignments to members of the court have usually been carried out with considerable distinction.


Less well known are the activities of various justices as confidential advisers to Presidents. But of this, too, as Mr. Portas pointed out to the Judiciary Committee, history furnishes many examples; some of them are described in the pictures and captions on the opposite page. It seems only natural for a President to continue to seek counsel of a man he has elevated to the high court when long and intimate association with such a man appears to make his counsel worth seeking.

Indeed, the issues dramatized by the Portas case are as old as the Supreme Court itself, for the very first Chief Justice, John Jay, established a precedent by engaging in both public and private extrajudicial activities that got him into considerable difficulties and caused his friend and patron President Washington no little embarrassment. This fascinating historical parallel is documented in the article beginning on the next page, the last of three devoted to Jay’s career and based on his unpublished papers at Columbia University. —The Editors


President Washington named John Jay to be the first head of the Supreme Court because the New Yorker had been one of the most eloquent and persuasive partisans of the Constitution and its ratification. During the years of the Confederation, strong bonds of mutual esteem and affection had been forged between the two men, who shared an identity of views on the need to build a national character, to strengthen the machinery of the central government, and to bring about conformity to treaty obligations.

Jay was only forty-three when he became Chief Justice, and his legal and judicial experience had been relatively limited. He had not practiced law since 1774, though he had served a very brief term thereafter as chief justice of New York during the Revolutionary years. When Washington notified him of his appointment, Jay was in fact still holding over as Secretary of State, now ad interim for Thomas Jefferson, who did not assume the post until March of 1790. For almost six months Jay wore two very different hats.

It has been the fashion among historians of the Supreme Court to minimize the significance of the Jay Court because of its comparative inactivity, and to treat the Chief Justice as something of a cipher. The facts do not support such an appraisal. On the bench Jay proved himself to be both a creative statesman and an activist Chief Justice whose concepts of the broad purpose and powers of the new nation under the Constitution were to be upheld and spelled out with boldness and vigor by John Marshall. What other Chief Justice, one might ask, not only stumped the country on foreign-policy issues, but went abroad while yet in office to negotiate a highly controversial treaty with a major power? What other Chief Justice ran for governor of his home state not once but twice, not resigning from the Court until he was notified that he had won the second election? What other Chief Justice enjoyed the notoriety of being threatened with prosecution for criminal libel on account of his extrajudicial activities?