George Washington and the Supreme Court

As the first president of the United States, George Washington influenced the vision of the Supreme Court. Article III of the Constitution specifically called for the creation of a Supreme Court and other inferior courts as Congress saw fit. Once the new federal government began operation in the spring of 1789, the Senate immediately began drafting the legislation to create the federal judiciary, ultimately establishing the Supreme Court.

Debates ensured about the proposed structure and make up of  such a court. Senators Oliver Ellsworth of Connecticut and William Paterson of New Jersey (both future Supreme Court Justices) worked together to draft legislation to establish the Supreme Court. President Washington signed the Judiciary Act into law on September 24, 1789, creating the third branch of America’s three tired system of federal governance—executive, legislative, and judicial. On the same day, he also submitted his nominees for the Court to the Senate for approval. The President shared his desires for the Court when he wrote to the Justices as a group in 1790: "I have always been persuaded that the stability and success of the National Government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretations and execution of its laws."¹

President Washington commented on how to determine the qualifications necessary to serve on the country's highest court. Washington noted that “in appointing persons to office, and more especially in the judicial department, my views have been much guided by those characters who have been conspicuous in their country.”² Washington also felt, “In performing this part of my duty, I think it necessary to select a person who is not only professionally qualified to discharge that important trust, but one who is known to the public and whose conduct meets their approbation.”³ With this reasoning, Washington selected his nominees. 

The first six nominees included: As Chief Justice, John Jay of New York; as Associate Justices, John Rutledge of South Carolina; John Blair of Virginia; William Cushing of Massachusetts; James Wilson of Pennsylvania; and Robert Harrison of Maryland. Harrison declined and was immediately replace with James Iredell of North Carolina.

President Washington wanted to nominate Justices who desired a position on the court and held the position in high esteem. He felt this was the best way to avoid embarrassing situations about appointments in the press. Washington wrote about his concerns for Supreme Court personnel problems, “the resignation of persons holding that high office, conveys to the public mind a want of stability in that department, where it is perhaps more essential than in any other.”⁴

The vital role of the judiciary in Washington’s view was expressed to Thomas Johnson: “In assenting to the opinion that the due administration of justice is the strongest cement of good government, you will also agree with me that the first organization of the judicial department is essential to the happiness of our country.”⁵

^{Mount Vernon partnered with the Supreme Court Historical Society to present this lecture on George Washington's role in shaping the United States judicial branch.} 

Despite his efforts to avoid conflict, throughout his two terms, Washington handled personnel and staffing issues on the Court. First among the Justices’ complaints was a mandate of the Judiciary Act of 1789 to travel a circuit to attend the circuit courts. This proved wearisome to the Justices due to the poor roads, poor lodging, and distances involved. In 1792, the Justices, as a group, wrote to the President concerning circuit riding: "We, really, sir, find the burthens laid upon us so excessive that we cannot forebear representing them in strong and explicit terms. …we cannot reconcile ourselves to the idea of existing in exile from our families…."⁶

A letter from Justice William Cushing to President Washington hints at the tribulations of eighteenth century travel. Cushing wrote, “The traveling is difficult this season…the snow of the 18^th began, which fell so deep…as to oblige me to take a sleigh, and now again wheels….”⁷

The circumstances surrounding the two separate appointments of John Rutledge to the Supreme Court created tension for Washington. Rutledge had lobbied the President for the Chief Justice position from the start in 1789. When that position went to John Jay, Rutledge was appointed as the senior Associate Justice. After the resignation of Chief Justice John Jay in 1795, Rutledge again lobbied the President for the position. Washington nominated him to the position. However, Rutledge publicly spoke out against the Jay Treaty in the following weeks, angering Federalists, including Washington. Rutledge was unanimously rejected by the Senate. 

Justices sought to create clear limits of the Court’s power in order to maintain separation of powers with the executive and legislative branches. Hayburn’s Case (1792) established that Congress cannot assigned non-judicial duties to federal courts. Congress attempted to task to the Court using the 1792 Invalid Pensions Act to take statements from veterans or their widows and orphans. The statements, per the Act, would then be reviewed by the secretary of war. The Justices all found this extra-judicial duty to be beyond the constitutional limits of their official work, especially given that a member of the executive branch was to review their work.

The Supreme Court during the Washington administration was plagued with both domestic and international crises. The Whiskey Rebellion (1791-1794); The Jay Treaty (1794); and the Quasi War with France (1793-1801). During difficulties with the French minister Edmond-Charles Genet and the President's Neutrality Act known as the Genet Affair.⁸ Justices were asked to comment in an extra-judicial manner. However, those serving on the court believed they should remain focused on judicial matters. The Justices responded in August 1793, “The lines of separation drawn by the Constitution between the three departments of government—their being in certain respects checks on each other—and our being judges of a court in the last resort—are considerations which afford strong arguments against the propriety of our extra judicially deciding the questions alluded to.”⁹

Washington’s appointees to the Supreme Court influenced early decisions made by the Court that ultimately shaped the role of the Court in American government. The first iterations of the Court established the tradition of the Court remaining uninvolved in non-judicial matters in order to maintain separation of powers. Washington's beliefs about the qualifications of Justices and lower court appointees shaped how nominees became selected and the public perception of the Court. 

Jude Pfister, Chief of Cultural Resources, Morristown National Historical Park; last updated 6 March 2025 by Zoie Horecny

Notes:

1.  "George Washington to the United States Supreme Court, April 3, 1790," The Papers of George Washington Digital Edition (Charlottesville: University of Virginia Press, Rotunda, 2008). Original source: Presidential Series (24 September 1788–3 March 1797), Volume 5 (16 January 1790–30 June 1790).

2. "George Washington to William Fitzhugh, December 24, 1789," Founders Online, Library of Congress. 

3. “From George Washington to William Paterson, 20 February 1793,” Founders Online, National Archives.

4.  "George Washington to Thomas Johnson, February 1, 1793,"Founders Online, National Archives.

5.  "George Washington to Thomas Johnson, September 28, 1789," Founders Online, National Archives.

6.  "Supreme Court Justices to George Washington, August 9, 1792," Founders Online, National Archives.

7.  "William Cushing to George Washington, February 2, 1792," Founders Online, National Archives.

8. "Cabinet Opinion on the Recall of Edmond Genet," 23 August 1793, Founders Online, National Archives.

9.  "Supreme Court Justices to George Washington, August 8, 1793," Founders Online, National Archives.

Bibliography:

Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (University of South Carolina Press, 2012.

Hoffer, Peter Charles William James Hull Hoffer, and N. E. H. Hull. The Supreme Court: An Essential History, Second Edition, University Press of Kansas, 2018.