The Judicary Act of 1789 (II): Its Weakness

We should have understood from the previous essay how the District Courts operated. Each of the thirteen met four sessions per year, in one or two or three places within the district. This part of the new system wasn't problematic.

The problem developed with the conception, times of meeting and organization of the Circuit Courts, described in secs. 4 and 5 of the Act. After describing the Circuits briefly, I will graphically represent their times of meeting. There were to be three circuit courts, the eastern, comprising districts of NH, MA, CT, and NY; the middle, including districts of NJ, PA, DE, MD, VA; the the southern, consisting of SC and GA. Note that the districts of KY and ME had no circuit courts, just a district court. One other thing you should know before we look at a chart. The three circuit courts consisted of three judges each; one was a district court judge and two were US Supreme Court Justices riding circuit. The district court justice on the circuit court would be determined by where the court sat; i.e., if in Delaware, the district court judge of Delaware would be, with two Supreme Court Justices, the third judge on the Circuit Court. Though the district courts met four times annually, the circuit courts met in two sessions per year.

When and Where the Circuit Courts Sat

Circuit	State	Session Dates	Cities where Ct Sat
Eastern	MA NH CT NY	May 3, Nov. 3 May 20, Nov. 20 April 22, Oct. 22 April 4, Oct. 4	Boston Portsmouth, Exeter Hartford, New Haven New York, Albany
Central	NJ PA DE MD VA	April 2, Oct. 2 April 11, Oct. 11 April 27, Oct. 27 May 7, Nov. 7 May 22, Nov. 22	Trenton Philadelphia, Yorktown Dover, New Castle Annapolis, Easton Charlotttesville, Williamsburgh
Southern	SC GA	May 12, Oct. 1 May 28, Oct. 17	Columbia, Charleston Savannah, Augusta

Comments on "The Schedule"

Recall that the makeup of the circuit court consisted of the district court judge in which the court sat and two Supreme Court Justices acting as Circuit Justices. Since there were 11 "districts" that each had to be visited twice, there were 22 sessions of the circuit courts each year. Each of these sessions required 2 Supreme Court Justices or, alternatively, 44 Supreme Court Justice "visits." There was a provision added in 1793 that allowed only one Supreme Court Justice to sit at the circuit court sessions, and this would lower the workload, to be sure. So if two Justices were going to a circuit, it meant that with six Justices each Justice had to make seven to eight circuit trips per year, if the work load was divided "evenly." Let's now look at the "travel schedule" for a typical Supreme Court Justice.

In February, he sat at the "seat of government" (Philadelphia in the 1790s, Washington DC beginning in 1800). The session could not last more than two months, since some of the Justices had to be out on the road at the first of April. But then, the next two months were a whirlwind of activities. If a Justice had four circuit court sessions, for example, he would be able to spend no more than two weeks in each city, and this would include travel between cities. Of course, he could take Jet Blue, but he might have to wait on the tarmac for nine hours or so.

This would be a difficult schedule for a young man who loved to travel. Here if you were really pursuing this topic, you could insert something about the difficulty and danger of travel in late 18th century America.

Well, so far you have only done 1/2 of your year. You were back wherever you wanted to spend some time recuperating in June and July, but then you began your routine again the first week of August in the "seat of government." August and September in the "seat of government," and then October and November riding circuit, sometimes into some pretty inhospitable climates. Then, sometime in all of this, the Justices were supposed to do research and write opinions. Want to try this?

Putting it All Together

Now, and it seems to me, only with a chart like this, can you truly begin to understand some of the strain on a Supreme Court Justice and why, within a year of its 1789 enactment, the Court was screaming about the burdens of circuit riding. Why did they even have such a provision? Did they secretly want to imitate the Methodists, who were spreading like kudzu in the period? Or did they want to give the impression of one nation, one justice system to fit the "unity" theme of 1787-1789? If so, they did it without much if any attention to the practical details of judging.

Now we can understand why people turned down requests to be Justices of the Supreme Court, and why there were three chief justices in the first 11 years of the Court's existence. It is a wonder that there were any useful opinions that came out of the body at all in this period.

Conclusion

Thus, a Supreme Court Justice, from the time of the Act until 1801, rode circuit four months of the year and sat in the seat of government nearly four months of the year. When we consider that the current Supreme Court only hears cases seven months of the year and maybe has to endure traffic jams getting to work, and has three or four clerks each, and still can only church out about 80 decisions a term, we see what our forebears experienced. And we see why the central reason for wanting to amend the Act in 1801 was to get rid of the circuit riding responsibilities of the Justices.

If seen in this light, we don't have to jump to the conclusion that the Judiciary Act of 1801 was just a political hack job by desperate Federalists wanting to keep power when the Republicans were about to take over. This was certainly an aspect of it. But a case could be made that it was a necessary law which, by creating 16 new circuit judge positions, responded to a need that had been felt since 1790. Patient reading of the 1789 statute thus shows its almost immediate "pressure points." It also shows that we ought not simply to adopt the regnant theory of the "political desperation" behind the Judiciary Act of 1801.

Now you are armed with some real knowledge, and you haven't even worked through the jurisdiction or procedural provisions of the 1789 Act. But that will be the task of another occasion.

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