The history of the Supreme Court before the appointment of John Marshall in 1801 has long received scant attention from scholars.  The unspoken assumption was that little of importance occurred during the Court’s first decade and that Marshall established the Court as a major institution.  This dismissive attitude has been increasingly challenged.  [See Scott Douglas Gerber, ed. Seriatim:  The Supreme Court before John Marshall (1998)].  William R. Casto has contributed significantly to a reevaluation of the early Supreme Court in this readable and important study.

Casto sets the stage by skillfully tracing the debate over the Judiciary Act of 1789 and examining the appointment criteria utilized by President George Washington for selecting justices. He provides sketches of each of the initial justices, stressing that they were men of integrity and ability.  Casto contends that John Jay and Oliver Ellsworth provided sound leadership for the fledging Court, and singles out James Iredell and William Paterson as intellectual stars.  He reminds us that the early Supreme Court itself heard relatively few cases, and that much of the work of the justices took place while they were serving as trial judges in the circuit courts.

The central theme of Casto’s account is that the early Supreme Court justices sought to uphold the policies of the fledgling federal government.  Casto maintains that the federal courts in the 1790’s can best be understood as national security courts.  The recurring wars between Great Britain and France posed serious challenges for the Washington administration as it sought to chart a neutral course.  The Supreme Court lent support to the government in a variety of ways.  For example, it extended admiralty jurisdiction to encompass prize cases, thus helping to reign in the operations of French prize courts on American soil.  Similarly, the Court affirmed a broad power in Congress to levy excise taxes and sustained the authority of the government to wage an undeclared war against France.  Although the Supreme Court itself heard no criminal cases in this period, the justices on circuit endorsed the resort to common-law crimes in an effort to bolster the national government.  This led to a heated dispute over the jurisdiction of federal courts to hear prosecutions of common-law crimes.  There were in fact only a handful of common-law prosecutions, but the notion of common-law crimes in federal court soon became highly politicized.  Casto points out that there was persuasive legal authority supporting the concept of common-law crimes, but the Jeffersonians took special aim at the perceived expansion of national power and killed the doctrine once they gained power.

The great bulk of federal criminal cases in the 1790s, of course, were based upon statutes.  The Sedition Act of 1798, enacted at a moment when war with France appeared imminent, was the most famous of these and another source of controversy.  The members of the Supreme Court, while on circuit court duty, unanimously expressed the view that the measure was constitutional.  Justice Samuel Chase, however, stood out in his zealous determination to enforce the Act.  Casto gives a balanced treatment of Chase’s often overbearing and partisan conduct of Sedition Act trials.  Despite Chase’s intelligence and ability, Casto concludes that he was arrogant, irritable, and “was not fit to be a judge.”

In its first decade the justices also established important institutional precedents.  They declined to render an advisory opinion in response to questions posed by President Washington, closing the door on such a practice.  As Casto notes, however, this decision did not prevent individual justices from frequently giving advice to the executive or legislative branches.  In response to an inquiry by Alexander Hamilton, Jay in 1793 even prepared a draft neutrality proclamation.  Moreover, Jay was appointed special envoy to Great Britain and negotiated the controversial treaty that bears his name.  Clearly the chief justice did not perceive an absolute barrier to holding dual appointments, even one entailing a long absence from the bench.  This opened the door for later Supreme Court justices to perform a variety of extra-judicial duties.

The early Supreme Court consistently took the position that debts must be paid, even those owed to British creditors.  This was an especially sensitive subject in the debt-laden southern states.  Nonetheless, in Ware v. Hylton (1796) the Court invoked the supremacy clause and enforced the provisions of the Treaty of Paris authorizing British creditors to collect pre-war debts in the face of contrary Virginia laws. Likewise, in Chisholm v. Georgia (1783) a majority of the Court ruled that federal courts had jurisdiction to hear suits by individual creditors against states for the recovery of debts. In so doing they rejected the defense of sovereign immunity of states from lawsuits. The decision triggered an intense and negative reaction, and led to the prompt adoption of the Eleventh Amendment. Effectively overturning Chisholm, the Eleventh Amendment provided that federal judicial authority did not encompass suits against states by citizens of other states or by foreign nationals.

This insistence by the Supreme Court upon the payment of debts was fully congruent with a central worry of the framers of the Constitution. It is well known that the desire to establish a national government that could protect private property, secure credit, and promote economic growth was a prime factor in the push for the constitutional convention. [See James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights, 3^rd ed. 2008]. The concern for contractual stability was embodied in the clause barring the states from impairing the obligation of contracts. Casto might profitably have given more attention to the judicial treatment of the contract clause in the first decade of the Court’s history. In 1792 a federal circuit court, including John Jay and Justice William Cushing, voided a Rhode Island debt-relief measure as an impairment of contract. This was apparently the first federal court decision to invalidate a state law. A much debated issue has been whether the contract clause was intended to cover public as well as private agreements. James Wilson, in Chisholm, declared that under the contract clause a state could not abridge its own agreements. Similarly, William Paterson in Vanhorne’s Lessee v. Dorrance (1795) treated a state land grant as a contract, and concluded that a state could not abrogate such a grant. His reasoning anticipated Marshall’s opinion in Fletcher v. Peck (1810). In short, the early justices foreshadowed Marshall’s robust reading of the contract clause.

In addition to examining the decisions of the early Supreme Court, Casto probes the contested question of the use of natural law precepts by the justices. He reminds us that all of the justices were steeped in the natural law tradition. Yet Casto is skeptical that the justices saw natural law as an independent source of judicial power. Notwithstanding some expansive language by Chase in Calder v. Bull (1798), the author maintains that the justices relied on natural law principles to help understand the meaning of the Constitution or to construe statutes. Casto stresses that in fact the justices never struck down a law for violation of natural law norms not expressed in the Constitution. Despite Casto’s argument, the thorny issue of resort to extra-constitutional principles remains open to debate. Several jurists in the Marshall era, for example, made explicit references to natural law seemingly as a basis for decision. The topic is ripe for further investigation.

The work leaves readers to ponder several larger questions pertaining to the history of the Supreme Court. Casto advances the questionable proposition that the greatness of the Supreme Court rests upon its power to impose its judgments on the other units of government. In contrast, he posits that “there was a unique harmony of interest between the early Supreme Court and the political branches that was never to be repeated in the next two hundred years.” Such a conclusion is highly problematic. In actuality, the extent to which the Court has resisted the political branches has often been exaggerated. Marshall upheld national authority. The New Deal Court was almost slavish in validating sweeping assertions of governmental power, and showed little sustained interest in individual rights. The early Warren Court largely reflected the prevailing sentiments of the post-World War period. The Jay-Ellsworth Court was simply not as unique in supporting the government as Casto suggests. Contrary to his contention, this theory of special accord among the branches does not adequately explain the lack of scholarly interest in the pre-Marshall justices.

A second question relates to the widely shared view that Marshall rescued the Supreme Court from obscurity and fashioned it into an effective branch of government. Consider two developments generally attributed to Marshall: judicial review and the end of the practice of each justice writing a separate or seriatim opinion. As Casto makes clear, justices in the 1790s not only affirmed the existence of judicial review of legislation but in fact exercised such power. Marshall’s opinion in Marbury v, Madison (1803) was not particularly original, and rested upon unacknowledged precedents established by his predecessors. The practice of having all justices write individual opinions reflected the custom in English appellate courts. Marshall sought to strengthen the Supreme Court as an institution by adopting the practice of issuing a single opinion expressing the Court’s views. Yet the Court had started to abandon the tradition of seriatim opinions during the chief justiceship of Oliver Ellsworth. Ellsworth began to deliver opinions for the Court, with infrequent dissents. None of this is to denigrate Marshall’s achievements, but to suggest that he built upon the too often overlooked work of his predecessors.

The early Supreme Court has found a worthy champion in Casto. This rewarding book is a valuable addition to the literature, and should be of interest to both scholars and general readers desirous of learning about a forgotten chapter of Supreme Court history.