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Justice Robert Jackson of the Supreme Court, for whom I once clerked, wrote a book about the Court half a century ago, in which he said,
[a]s created, the Supreme Court seemed too anemic to endure a long contest for power. . . . Yet in spite of its apparent vulnerable position, this Court has repeatedly overruled and thwarted both the Congress and the Executive. It has been in angry collision with the most dynamic and popular Presidents in our history. . . .
This description may have been slightly shaded to get the attention of the reader, but there is a great deal of truth in it. From time to time, commencing soon after this nation’s birth, our co-equal branches of government have bristled at the idea of an independent judiciary, and their hostility has often been directed at the United States Supreme Court, the most visible embodiment of that independence.
The Supreme Court got off to a very slow start, deciding some 60 cases in its first 10 years. Its first chief justice, John Jay, was appointed a special ambassador to England by President George Washington to negotiate what ultimately became the Jay Treaty. He left the United States in the spring of 1794 and did not return until the summer of 1795. There is no evidence that his absence in any way handicapped the Supreme Court from doing its work. When Jay returned, he learned that he had been elected governor of the state of New York in absentia (imagine that), and he resigned from the Supreme Court to accept the governorship.
Jay’s successor, Oliver Ellsworth, had a remarkably similar experience. John Adams, who succeeded Washington as president, sent him on a mission to France to try to bring about an end to the undeclared war between the two countries. Ellsworth became ill while in Paris, and in December of 1800, he submitted his resignation to President John Adams.
By then, Adams had become the first lame duck president of the United States. He was defeated by Thomas Jefferson in November 1800, but he remained in office until March 1801. The election of 1800 is referred to by many American historians as the second American Revolution. The Federalists, led by George Washington, Alexander Hamilton, and John Adams, had governed the nation for the first 12 years of its existence. They believed, as Hamilton put it, that the country should be governed by the “rich, the able, and the well born.” They preferred England to France as an ally of the United States. Thomas Jefferson and his party, on the other hand, believed in an agrarian democracy and favored France as an ally over England. In the election of 1800, Jefferson and his party took control of the presidency and both houses of Congress from the Federalists. During this lame duck period, Adams appointed John Marshall as chief justice of the Supreme Court of the United States, setting the stage for the assertion by the Court of its constitutional role.
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