Chief Justice Oliver Ellsworth: impeccable pedigree for a Supreme Court appointment

President George Washington’s nomination in 1796 of Oliver Ellsworth to serve as the third Chief Justice of the U.S. Supreme Court was met with universal approval. Ellsworth boasted a record of experience that few then, and none since, could match. Above all, Ellsworth was a genuine heavyweight in the Constitutional Convention, among a handful of delegates who spoke frequently and authoritatively and played a key role in shaping the final version of the Constitution that the American people ratified in 1787-1788.

Washington, who had known Ellsworth since the Revolutionary War and during his representation of Connecticut in the Continental Congress for six years, observed the intellectual powerhouse at work in the Philadelphia Convention throughout the summer of 1787. As President of the Constitutional Convention, Washington observed Ellsworth’s skillful negotiation of the Great Compromise that saved the proceedings from collapse, admired his leadership in crafting Article III of the Constitution – the Judiciary Article – and appreciated his espousal of the awesome power of judicial review, an American invention and major contribution to political science and law. Already regarded as one of the nation’s ablest attorneys, Ellsworth demonstrated anew his leadership in championing the separation of powers and checks and balances with the insertion of a judicial check on the legislative and executive branches, to ensure that they did not transgress their boundaries. Ellsworth’s credentials and qualifications to serve on the nation’s High Bench, based on his participation in the Convention alone, were undeniable.

They were further burnished by his effective leadership as a member of the U.S. Senate, at the time of his appointment. Ellsworth had been the principal author of the Judiciary Act of 1789, the first bill passed by the First Congress, and the most important judicial legislation in the nation’s history. The Judiciary Article of the Constitution was not self-executing. Without enactment of a statute, the Supreme Court and lower federal courts could not be called into existence. The 1789 Judiciary Act thus created the Supreme Court and set forth its jurisdiction. Ellsworth, along with William Paterson of New Jersey, who had been a delegate to the Convention and was destined for an appointment to the Supreme Court, were the key members of the Senate committee that drafted the bill. The principal draftsman was Ellsworth; indeed, the last drafts of the legislation were in his handwriting. One of his senatorial opponents declared, “this Vile Bill is a child of his.”

The Judiciary Act resolved the question of whether there should be inferior federal courts, in their favor. It established the federal judiciary, with a Supreme Court, consisting of six justices, as the highest court in the land, as well as a two-tiered system of inferior courts, with district courts located in each state at the base, and three circuit courts organized into the eastern, the middle and the southern circuits, each composed of two Supreme Court justices and a federal district judge. The federal courts were given limited jurisdiction. The jurisdiction of the Supreme Court was provided for in the form that it has retained ever since. Crucial to the authority of the federal courts and the subsequent history of the nation was that the Supreme Court was given appellate jurisdiction not only over the lower federal courts, but also under Section 25 of the Act, jurisdiction over state courts that involved federal questions. The Supreme Court’s power to review state court decisions is what has been called “the keystone of the whole arch of federal judicial power.” Without it, the Constitution would be left to the interpretations of 50 state supreme courts, plunging the nation into constitutional chaos and crisis.

Sen. Ellsworth’s appointment to the Court was a major loss to the Senate. “The appointment of the C.J.” John Adams wrote to his wife, Abigail, “was a wise Measure,” even though by it, “we loose the clearest head and most diligent hand we had in the Senate.”

At the time of his appointment to the Court, Ellsworth was 51 years old. A strong Federalist and devout Calvinist who studied theology before switching to the law, Ellsworth had distinguished himself as a young national leader at the Convention, with the likes of other “youngsters” such as James Madison and Alexander Hamilton, and much was expected of him when he became Chief Justice. But poor health, the relatively light calendar of the Court and his acceptance of a diplomatic assignment to France, while serving on the Court for a little more than three years, left him little time to shape the Court’s development, let alone become a distinguished Chief Justice. As Chief, he did try, without much success, to initiate the policy of the Supreme Court handing down per curiam opinions or single decisions, for the entire Court as opposed to the English practice of seriatim or separate opinions by individual justices.

While abroad as part of his diplomatic assignment to end the undeclared war with France (1798-1800), Ellsworth resigned the chief justiceship, citing ill health. The timing of his resignation was politically important to President John Adams, who appointed John Marshall, another staunch Federalist, to succeed Ellsworth. Ellsworth returned to Connecticut, where he lived for seven more years.

This column is supported by Humanities North Dakota, a nonprofit dedicated lifelong learning, and the North Dakota Newspaper Association.