Shorthanded Supreme Court goes back in time
PHILADELPHIA — Three Supreme Court justices came to the nation's birthplace Monday to re-enact the only reported jury trial in the court's history, and they added a modern touch: They were a justice short.
It took four of the six justices serving in 1794 to preside over Georgia v. Brailsford, a 222-year-old case that tested whether a state could confiscate debts owed to a British citizen once the Revolutionary War had ended. The justices and the jury — then and now — thought not.
The case was unique on several levels. The court has never again held a fully reported jury trial — even though it can do so under the Constitution. In his ruling, Chief Justice John Jay instructed the jury that it could decide legal as well as factual questions — a precedent that's been used to justify jury decisions that ignore settled law.
Thus it was that in 2016 Chief Justice John Roberts repeated Jay's instruction that jurors could "determine the law as well as the facts" — an invitation that Lord Jonathan Mance, a justice of the United Kingdom's Supreme Court acting as jury foreman, said was "perhaps too polite towards our capabilities."
The entire 75-minute re-enactment was part of a legal exchange program between the Revolutionary War adversaries, and it attracted Roberts and Justices Stephen Breyer and Samuel Alito to Philadelphia's Old City Hall, which housed the Supreme Court from 1791-1800.
The justices are busy preparing for the 2016 term that begins in two weeks — a term notable for a vacancy that has existed since the death of Justice Antonin Scalia in February. Senate Republicans have refused to consider President Obama's nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, pending the November election.
Supreme Court term defined by one empty chair
After working shorthanded for the past seven months — deadlocking on four cases, limiting the scope of several other decisions and choosing mostly non-controversial cases to hear this fall — Roberts and his colleagues had no trouble representing the 1794 court despite their lack of a quorum.
The setting, however, was a bit less magisterial. The justices sat on straight-backed seats, a far cry from the huge leather chairs on which they rock back and forth at the Supreme Court's marble palace in Washington. Four lawyers — two for each side — sat at the same simple table or paced the wooden floor in front of the jury. Seven justices and judges from the United Kingdom, acting as a shorthanded jury, scratched out notes on their programs. The prisoner's dock was empty.
"The Supreme Court is not usually in the business of conducting trials," Roberts said at the start of the re-enactment, explaining that it did so only in rare cases where a state such as Georgia made it the court of original jurisdiction. Noting the 1794 version went on for four days, he said, "We will not faithfully re-enact that aspect."
The case hinged on two issues: whether Georgia had confiscated or merely temporarily sequestered the money Samuel Brailsford loaned to a state resident, and whether the Treaty of Paris ending the war required the debt to be repaid. A special jury composed of local merchants was impaneled, and they ruled for the British national.
Ever faithful to history, the American and British actors reached the same conclusion Monday. Alito noted the Georgia statute used the term "sequester" to refer to debts. Breyer noted the state never actually confiscated the funds. And Roberts noted the 1783 treaty that his predecessor Jay helped craft called for repayment of "bona fide" debts.
"I remember when I was in Paris negotiating this," Roberts quipped.