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The Supreme Court at the Beginning: What to Wear

                The photos and images of U.S. Supreme Court Justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal.  But that’s not the Justices’ only side. There is another.

 

      In the beginning, indeed, on the first day that the Supreme Court of the United States convened —February 2, 1790—the most important issue confronting the Justices was what to wear to work. Seriously.

 

      As such, the Justices faced the same question that many of us contemplate as we approach our first day on the job—appropriate workplace attire.  The issue was a controversial one that went beyond members of the Court. Alexander Hamilton, whose daily dress promoted sartorial splendor, suggested the English wig and gown. Thomas Jefferson, who differed with Hamilton on so many issues, was at odds with him on the question of judicial attire.  Jefferson, given to dressing as though every day were Saturday, opposed both. He said, however, that if the gown was to be worn, “For Heaven’s sake, discard the monstrous wig which makes the English judges look like rats peeping through benches of oakum!”

 

    

 

    As if to test the thesis, Justice William Cushing arrived in New York wearing an outdated judicial wig. Observers noted that the wig created excitement.  A group of boys followed the Justice down the street. Cushing was oblivious to the commotion until a sailor confronted him and exclaimed, “My eye! What a wig!”  At that point, an embarrassed Justice retreated to his lodgings and discarded the wig. Cushing never wore a wig again, and neither did any of the other Justices.

 

    The Supreme Court first convened in the Royal Exchange, on Broad Street in New York City. Although the Justices did not wear wigs, they were nattily dressed in black and red robes, attire that impressed spectators and suggested gravity, elegance and neatness. The public approved.

 

       The Court’s beginnings were hardly auspicious, despite its distinguished membership. The occasion was formal, and newspapers followed it closely, reporting all the details of the first meeting of the third branch of government. The Court lacked the stature and prestige that it would accrue through the years. Hamilton’s description of the judiciary as “the least dangerous branch,” was reflected in the disinterest of some offered an appointment to the Court, in the lack of organization and adequate staffing.

 

     Only four of the six men that had been appointed by President George Washington, and quickly confirmed by the U.S Senate, showed up for the first meeting. Robert H. Harrison declined appointment, likely because he considered his position as Chancellor of Maryland to be more important than a seat on the U.S. Supreme Court. John Rutledge, although a member of the Supreme Court for its first three terms, attended only one session and soon resigned to accept the position of Chief Justice of South Carolina.

 

      Little attention was paid to the organizational and administrative details and needs of the Court, at its first meeting and throughout its first Term in 1790.  The Court had nothing to do except admit attorneys to its bar, and it shortly adjourned. It began as a court without an official reporter, litigants, a docket, appeals or decisions to make. For its first two years, it heard no cases and made no substantive decisions until 1793.

 

      John Jay, the first Chief Justice of the Supreme Court, shed light on the beleaguered state of the Court in its early years. At the request of President Washington, Jay took leave from the Court and spent considerable time in England, negotiating what became known as the Jay Treaty (1794). After resigning from the Court in 1795, he was invited by President John Adams in 1800 to return to the Court, once again as Chief Justice, as successor to Oliver Ellsworth. When Jay was offered the position, he declined it because of the arduous responsibilities of riding circuit, but he also cited the Court’s lack of “energy, weight and dignity,” which he said were necessary to support the national government. And, he added, the Court lacked “public confidence and respect.” He returned to New York to become Governor.

 

        Jay’s decision to pass on President Adams’s offer was the Supreme Court’s gain.  Adams proceeded to nominate John Marshall, who became, and remains, the nation’s greatest Chief Justice. Marshall converted the Court into a truly co-equal branch of government and laid the foundation for it to become the authoritative interpreter of the Constitution.

 

       It is difficult for us today to realize that, at the beginning, a seat on the Court was little more than an opportunity to complete a distinguished legal career. Even that, however, was not enough to secure the service of some strong and experienced attorneys. But the humble beginnings of the Court are a thing of the past. “Since Marshall’s time,” Justice Felix Frankfurter once wrote, “only a madman would resign the chief justiceship to become governor,” or for that matter, a state judge.

 

    Today, the Supreme Court Justices flex their considerable judicial muscles to resolve the weightiest, and most contentious, legal issues of our time.



David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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