SUPREME COURT

The "least dangerous" branch was Alexander Hamilton's classic description of the U.S. judiciary in Federalist No. 78 (1788), because it had "no influence over either the sword or the purse." This description was still accurate in 1828, but dramatic changes had occurred during the intervening four decades. However committed to the separation of powers, the framers of the Constitution emphasized the political branches. The order of their presentation demonstrates the level of their concern. Article I defines legislative authority in 2,279 words. Article II presents the executive in less than half that space, 1,012 words. By comparison the judiciary, provided for in Article III, seems almost an afterthought, described in only 365 words. The Supreme Court is established in the first sentence: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Another sentence provides a brief but highly significant list of authorities granted to this court (or courts), including "all cases … arising under this Constitution and … the laws and treaties … under their authority." Seven additional sentences assure judicial independence, assign areas of original and appellate jurisdiction, guarantee criminal jury trials, and define rules for treason cases.

judiciary act of 1789

Original jurisdiction granted by the Constitution to the Supreme Court was limited to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." All other cases were supposed to reach the Supreme Court through appeals—but appeals from whom? The most contentious judicial issue in the Constitutional Convention, whether there should be subordinate federal courts or whether state fears should be mollified by advancing federal issues only from state courts, was left for the first Congress to resolve. Therefore, it was important that Congress act promptly and creatively in determining the structure of the federal judiciary, including even the structure of the Supreme Court. The first Senate rose splendidly to the challenge. While the House of Representatives focused on economic and administrative issues, the Senate's first major assignment was to create the Judiciary Act of 1789, described as one of the greatest, and certainly one of the longest lasting, laws in American history. It survived nearly unchanged for a century and early in the twenty-first century remains an essential part of the American judiciary.

Oliver Ellsworth of Connecticut chaired the Senate's grand committee, ably abetted by William Paterson of New Jersey. Having succeeded in the Constitutional Convention of 1787 in guaranteeing a strong role for small states such as theirs, they now cooperated in the Senate to establish a strong judiciary despite their earlier concerns that state judiciaries would be weakened unjustly if forced to compete with federal courts at the local level. Both would soon be appointed to the Supreme Court that they created, Paterson in 1793 and Ellsworth in 1796 as chief justice. The legislation was reported in June and then debated for sixteen weeks until it became law on 24 September 1789. It established a Supreme Court of six justices, augmented by thirteen district courts and three circuit courts to which federal issues could be appealed. Districts were linked to state boundaries, except that Maine and Kentucky, which were not yet states, each had its own district court. Because of delays in the ratification of the Constitution, North Carolina and Rhode Island had not yet been added to the new nation while the judicial legislation was in process. The single judge in each district court would sit with two Supreme Court justices to staff the circuit courts. Most important (and controversial) was section 25, which allowed appeals to the Supreme Court from state courts. President George Washington, obviously waiting anxiously for passage of this legislation, sent the names of six justices on 24 September; they were confirmed two days later by the Senate.

justices on horseback

The Supreme Court justices' early years were devoted to incessant travel to circuit courts and to vigorous protection of judicial independence. They soon learned how exhaustive service in circuit courts ranging from New Hampshire to Georgia could be. Congress granted a single concession in response to continual complaints and occasional resignations regarding this burden. Beginning in 1793 only one justice was required for each circuit court, sitting with a district judge. Despite the resentment and exhaustion, the justices' presence in local courts provided important opportunities for them to establish their independence. In particular, on circuit they were able to establish a foundation for the judicial review that would be confirmed later by the Marshall Court. Without strong objection, circuit courts ruled actions

by the Connecticut, Rhode Island, and Vermont legislatures to be in conflict with the U.S. Constitution. In Hayburn's Case (1792), two circuit courts ruled that Congress had exceeded its constitutional limits by assigning Supreme Court justices to nonjudicial functions. The justices softened this affront by carrying out their assignment as "special commissioners" rather than as judges. In Hylton v. U.S. (1796), the Supreme Court ruled that a carriage tax passed by Congress was not a violation of the Constitution; ruling that the tax was constitutional at least implied that it might instead have been found to be unconstitutional.

Nine of Washington's ten appointees were Federalists in both senses of the word: strong supporters of the Constitution as well as active participants in the political party that would soon be known as Federalists. The exception was Samuel Chase, whose strident Federalist partisanship offset his initial opposition to the Constitution. John Adams's three appointees all voted Federalist, while all seven of the justices appointed after Marshall were Republicans—although Joseph Story embraced John Marshall's Federalist jurisprudence. Marshall and Henry Brockholst Livingston had likewise supported ratification of the Constitution as young men.

judiciary act of 1801

Partisanship proved a massive barrier to Congress's one attempt to remove the responsibility that caused so many to resign or refuse appointment to the Supreme Court. The Judiciary Act of 1801, approved just weeks before Thomas Jefferson became president, sought to relieve the justices of circuit-riding responsibilities. It created six new circuit courts and, most important, provided circuit judges for all of those courts. Under it, Supreme Court justices would no longer rule on issues that they had already decided on circuit. Much of value was included in the legislation, but the timing was abominable. President Adams and a Federalist-dominated lame duck Senate quickly proved the accuracy of Republican assumptions that all sixteen new circuit judges and their accompanying clerks and marshals, plus a few new district judges, would be Federalists. Even decreasing the Court from six to five, which had the virtue of reducing the number of tie votes, was also suspect because it would not become effective until the next justice died or retired. Jefferson would not only inherit Federalist judges with a prospect of lifetime service, he would not even be able to appoint a replacement when the first Federalist Supreme Court justice died. Worse yet, these "midnight appointees" to the circuit courts were given increased jurisdiction, further threatening the viability of the state courts.

The Republican Congress rescinded the Judiciary Act of 1801 at the first opportunity, early the following year, abolishing the new courts and judges and consigning Supreme Court justices again to the circuit courts. This blow was softened somewhat by the Judiciary Act of 1802. It increased the number of circuit courts to six, with one justice assigned to each one for two sessions. Justices' travel burdens were lessened further by decreasing Supreme Court responsibilities from two two-week sessions annually to a single four-week session. Judicial reform was so politicized in 1801 and 1802 that significant change remained nearly impossible for decades.

Fortunately, the Federalists who still packed the Supreme Court shared the realism of their new leader, the politically adept Chief Justice Marshall. He recommended quiet acquiescence in the changes; only the volatile Samuel Chase demanded that they refuse to return to the circuit courts. Paterson, who had been second only to Chase in blatant partisanship when addressing juries in sedition cases, rendered his greatest service as a justice when he ruled in Stuart v. Laird (1803) that the Judiciary Act of 1802 was constitutional.

finally some republican justices

Federalist justices maintained their majority on the Supreme Court throughout Jefferson's presidency and most of Madison's first term. The first Republicans were appointed in 1804 and 1806. Even Kentuckian Thomas Todd's appointment in 1807 did not bring the Republicans to equal representation, because he was named to a seventh position, established to serve the new western circuit. Not until 1812, after Gabriel Duvall (November 1811) and Joseph Story (February 1812) had replaced two deceased Federalists, did Marshall and Bushrod Washington finally become a Federalist minority, albeit a very influential one.

In fact, Marshall's most productive years came during the Republican ascendancy. Republicans on the bench did not really become Federalists, as Jefferson sometimes contended, but Marshall's congenial personality and the responsibilities of the bench often persuaded them to side with his judicial nationalism. Because Madison did not share the antagonism that Jefferson had long felt for Marshall, the chief justice in turn acted less politically on the bench during Madison's presidency. Marshall never crossed over to the Republicans, but by 1817 there was really no Federalist Party to abandon.

Chief Justice Marshall introduced significant revisions of court procedures without need for additional judiciary legislation. His first decision, Marbury v. Madison (1803), marked an advance from seriatim decisions (in which justices individually read their own opinions) to majority opinions that could be accompanied by dissenting and concurring opinions. During Chief Justice Ellsworth's brief tenure, individual decisions were sometimes abandoned; after 1803 seriatim decisions were rare. The Jay Court, where each justice stated his own opinion with the chief justice speaking last, sometimes left the public wondering just what the Supreme Court had said. When John Marshall spoke for the majority, the message came loud and clear.

See alsoConstitutional Convention; Constitutional Law; Judiciary Act of 1789; Judiciary Acts of 1801 and 1802; Marbury v. Madison; Marshall, John; Presidency, The: John Adams; Supreme Court Justices .

bibliography

Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia: University of South Carolina Press, 1995.

Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1815. Columbia: University of South Carolina Press, 1997.

Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992.

Urofsky, Melvin, and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2nd ed. Vol. 1. New York: Oxford University Press, 2001.

Donald O. Dewey