Sublime

Eisenhower’s appointment of Earl Warren to be chief justice of the United States, like John Adams’s appointment of John Marshall, was one of the major events of his presidency.

In July the cabinet sent Jay twenty-nine queries to clarify the meaning of neutrality and rule on American jurisdiction over the French seizure of ships in American waters. On August 8, replying on behalf of the Supreme Court, Jay declined to render an advisory opinion. The Constitution, he said, had set up three independent branches of government,

The Americans have retained these three distinguishing characteristics of the judicial power; an American judge can only pronounce a decision when litigation has arisen, he is only conversant with special cases, and he cannot act until the cause has been duly brought before the court.

In no area did Washington exert more painstaking effort than in selecting judges, for he regarded the judicial branch as “that department which must be considered as the keystone of our political fabric,” as he told Jay in October 1789.34 Once the Judiciary Act passed in late September 1789, he nominated Jay as chief justice along with five associa

The judges, however, wisely rejected that argument, quoting Thurgood Marshall's observation that given the mysteries of human motivation, “it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”