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Extrajudicial Activities of the Early Supreme Court

Neither law, political science, nor history has looked with favor upon the pre-Marshall Supreme Court. There is a widely held notion that until Marshall came to the Supreme Court, the Court did nothing. It did nothing, it is said, in part because its members so preoccupied themselves with nonjudicial duties that work on the Court was distinctly secondary. Historians have, of late, taken another look at the pre-Marshall Court and have concluded that its judicial work was not as unimportant as has been believed.' Yet the suspicion remains that the early judges were more anxious to be politicians than judicial statesmen.2 It is surely true, and often noted, that Jay and Ellsworth served as diplomats, that Bushrod Washington and Chase made partisan speeches. What deserves recognition, though, are the occasions on which the members of the early Court rejected demands for extrajudicial service, and why they did so. The Jay Court faced a President and Congress anxious to adopt a basic assumption of the English constitution, the assumption that judges were obligated to