Jay Declines a Second Appointment as Chief Justice: Editorial Note
Jay Declines a Second Appointment as Chief Justice
In late 1800, Jay received a remarkable request from John Adams, asking that Jay once again take up the post of chief justice of the U.S. Supreme Court. As Adams explained, the former chief justice, Oliver Ellsworth, was “afflicted with Gravel and Gout,” and had therefore resigned his post.1 Adams nominated Jay to replace Ellsworth and the Senate confirmed his appointment the following day.2 Although Adams had not consulted with Jay beforehand, he perceived that the nation’s political developments warranted such a decision. Concerned that his bid for reelection would prove unsuccessful as well as the likelihood of a general transfer of power from the Federalist to the Republican Party, Adams viewed the judicial branch as a bulwark for insuring the continuation of safe and responsible governance and trusted Jay to lead the Supreme Court bench.3 As Adams confided to Jay, “In the future Administration of our Country the firmest Security We can have against the Effects of visionary Schemes or fluctuating Theories, will be in a solid Judiciary: and nothing will cheer the hopes of the best Men so much as your Acceptance of this appointment . …Providence had thrown in my Way an Opportunity not only of marking to the publick, the Spot where, in my Opinion the greatest Mass of Worth remained collected in one Individual but of my furnishing my Country with the best Security, its inhabitants afforded, against the increasing dissolution of Morals”.4 Three days after Adams sent the letter, Jay received the official commission, as well as words of support, from John Marshall, then serving as secretary of state.5
Questions involving Adams’s selection of Jay as the new chief justice, what this appointment portended for the future of national politics, and whether Jay would accept the post, were widely debated in official circles. James Gunn, a Federalist senator from Georgia, recognized the arduous demands associated with serving on the Supreme Court bench, and commented that “it is no compliment to re-appoint him to that office.”6 Several of Gunn’s fellow Federalists, including Abigail Adams, John Marshall, and Oliver Wolcott, approved of Adams’s decision, yet they assumed that Jay would turn down the appointment.7 Peter Augustus Jay also anticipated that his father would choose retirement over public service, commenting, “I can hardly congratulate you on your new appointment; to accept it will be contrary to all your Views & wishes.”8 Even John Adams admitted that he would need to seek out another candidate, as Jay, in all likelihood, would decline the post.9 Republicans, on the other hand, viewed Jay’s nomination with suspicion, situating it within a broader Federalist scheme to maintain political power over the national government. In letters sent to James Madison, Thomas Jefferson voiced his concerns regarding Jay’s placement on the Supreme Court bench. Although Jefferson conceded on 19 Dec. that upon hearing of Jay’s nomination, he and his Republican colleagues “were afraid of something worse,” a week later he warned Madison that “the Feds appear determined to prevent an election, & to pass a bill giving the government to mr. Jay, appointed Chief justice.”10
Jay mulled over Adams’s request for several days before submitting a response. In his reply, Jay expressed gratitude for being considered for the post and commented on the civic responsibility of returning to the Supreme Court and thereby remaining in public office. After weighing these considerations, Jay decided not to resume his duties as chief justice. During his tenure as chief justice, Jay had found the judicial system “defective,” and he explained to Adams that no remedies had yet been applied to imbue the Supreme Court with the requisite “Energy, weight and Dignity which are essential to its affording due support to the national Government.”11 Jay here implicitly referenced his experience of serving on the Eastern Circuit Court during the early 1790s and the arduous duties associated with riding circuit for months at a time.12 Moreover, Jay pointed to his declining health as the deciding factor that convinced him not to take on the additional burden of chief justice. Jay reiterated this final point in his formal rejection sent to John Marshall, explaining that “(independent of other Considerations) the Incompetency of my Health to the Fatigues incident to the Office, forms an insuperable Objection to my accepting it.”13
1. JA to JJ, 19 Dec. 1800, below. GW nominated Ellsworth as chief justice of the Supreme Court on 3 Mar. 1796, and the U.S. Senate confirmed him the following day. In 1799, JA appointed him as an envoy to negotiate a peace with France. Ellsworth tendered his resignation in mid-October, while in Le Havre, France. Ellsworth to JA, 16 Oct. 1800, ALS, MHi: Adams.
2. See JA to U.S. Senate, 18 Dec. 1800, ADS, DNA: RG 46, Records of the U.S. Senate. JJ also received notice about his appointment and confirmation from William Cooper and Henry Glen, two serving congressmen representing upstate New York. For these communications, see Cooper to JJ, 19 Dec., and Glen to JJ, 20 Dec., both below.
3. For the Federalists’ shared concerns that a transition of power would occur at the state and national levels, see the editorial note “Republican Ascendancy in 1800,” above.
4. JA to JJ, 19 Dec. 1800, below.
5. Marshall to JJ, 22 Dec. 1800, below. For the commission, see Commission of JJ as Chief Justice of the Supreme Court of the United States, 19 Dec. 1800, LbkC, DNA: RG 59, Misc. Permanent & Temporary Presidential Commission, 1789–1802, 380, (EJ: 13334).
6. James Gunn (1753–1801). Gunn to AH, 18 Dec. 1800, ALS, DLC: Hamilton; PAH, 25: 263–64.
7. John Marshall to Charles Cotesworth Pinckney, 18 Dec., ALS, DLC: Pinckney Family; PJMar, 6: 41; Abigail Smith Adams to Thomas Boylston Adams, 25 Dec., ALS, MHi: Adams; Adams Family Correspondence, 14: 500; Oliver Wolcott Jr. to AH, 25 Dec., ALS, DLC: Hamilton; C, CtHi; PAH, 25: 273–74. See also Thomas Boylston Adams to JA, 28 Dec. 1800, C, MHi: Adams; Adams Family Correspondence, 14: 503.
8. PAJ to JJ, 2 Jan. 1801, below.
9. JA to Thomas Boylston Adams, 23 Dec. 1800, ALS, MHi: Adams. JA eventually selected John Marshall to fulfill the post of chief justice of the Supreme Court. Following JA’s nomination on 20 Jan., he was confirmed by the Senate on 27 Jan. 1801. For more on this appointment, see Kathryn Turner, “The Appointment of Chief Justice Marshall,” WMQ, 17 (Apr. 1960) 143–63.
10. TJ to JM, 19 Dec., and 26 Dec., 1800, both RC, DLC: Madison; PTJ, 32: 321–24, 358; PJM, 17: 444–46, 448. See also TJ to Tench Coxe, [31 Dec. 1800], C, DLC; PTJ, 32: 375–76.
11. JJ to JA, 2 Jan. 1801, below.
12. For JJ’s years of service on the Circuit Court, see his Circuit Court Diary, 16 Apr.–30 May; 28 Sept.–15 Dec. 1790; 21 June–9 July; 27 July–7 Aug.; 11 Oct.–16 Dec. 1791; and 15 Apr.–1 June; and [2–4 Aug.] 1792; and editorial note “Riding the Circuit,” , 5: 214–33, 240–58, 277–93, 321–28, 339–46, 389–95, 438–40.
On 13 Feb. 1801, Congress passed “An Act to provide for the more convenient organization of the Courts of the United States,” reforming the Circuit Court system. Stat. 2: 89–100.
13. JJ to John Marshall, 2 Jan. 1801, below. In a letter to PAJ, JJ did not provide further explanation in writing, “as to my new appointment, I have declined accepting it— I postpone Details on this Subject until we meet”. JJ to PAJ, 12 Jan. 1801, ALS, CtY-BR (EJ: 05208).