Chapter 1: The court is founded at the Philadelphia convention of 1787

Prior to the 1787 Constitutional Convention, all of the nation’s laws are formulated by individual State legislatures, and disputes are adjudicated in State courts.

That changes once the delegates decide to create a National government and a National Congress charged with passing new laws going forward. The delegates quickly agree that these new federal acts must be consistent with the dictates of the new “contract.” As Alexander Hamilton puts it:

No legislative act contrary to the Constitution can be valid…(and) it is therefore the duty of the courts of justice…to declare all acts contrary to the Constitution void

The question then becomes how to insure this needed compliance? Again, the delegates look to the 11th Resolve in the “Virginia Plan” for guidance, which is generally accepted:

That a national Judiciary (should) be established to consist of One Supreme Tribunal, the judges of which to be appointed by the second Branch of the National Legislature, to hold their offices during good behavior.

The Resolve then goes on to add more details:

A “Council of Revision,” (would be) composed of the Executive and several members of a National Judiciary, who would review new laws before they are finalized, and then “nullify” any deemed to be contradictory to the “intent” of the Constitution.

This formulation however meets with opposition on several counts:

• A review of every new law before it takes effect will paralyze the entire system.
• It would signal distrust and disrespect for the good intentions of the Legislative Branch.
• Power over the law would be transferred to a handful of judges, none of whom are elected by the people.
• Including an Executive who may have no legal training makes little sense.

Further discussion leads to two changes: the Tribunal would review laws only after they have taken effect and only if they are challenged for non-compliance with the Constitution; and the President will not be included on the court, for possible lack of legal knowledge and potential for conflicts of interest.

Next comes the process for selecting members of the Tribunal. The size of the court is not identified, but Article II, Section 2, Clause 2 of the Constitution says that:

The President…shall have the power…to nominate, and by and with the Advice and Consent of the Senate, shall appoint…judges of the supreme court.

With time running out, the delegates agree on a fairly hastily written Article III broken into three sections. The first provides an overview of the “third branch:”

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. The judges shall hold their Offices during good Behavior, and shall, at stated times, receive for the Services, a Compensation which shall not be diminished during their Continuance in Office.

Section 2 deals with the very controversial issue of “jurisdiction” – i.e. in what cases will the “National Judiciary” vs. the “State Courts” have the authority to preside and make final rulings? With the concern among some being that the “sovereign powers” of the States will be damaged by the new system. Thus the attempt is made to “enumerate” the range of cases the Supreme Court will address, acting in almost all instances to assess “appeals” emerging from lower court decisions.

• All cases affecting Ambassadors, other Ministers and Consuls;
• All cases of admiralty and maritime jurisdiction;
• All Controversies to which the United States shall be a party;
• Controversies between two or more States;
• Between Citizens of different States;
• Between Citizens of the same State claiming Lands under Grants of different States; and
• Between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

While this listing will provide a start, issues of “jurisdiction” will be challenged repeatedly in cases to come before the Supreme Court – and often around suits involving slavery.

(Over the next 150 years, the State Courts will retain great latitude here with only a few exceptions relegated to the Federal Courts – mainly lawsuits against the United States and other cases involving specific federal laws related to criminal, maritime, bankruptcy, patent or antitrust activities.)

Section 3 focuses on the definition of Treason and the proofs required:

• Treason…shall consist only in levying War against the States or in giving Aid and Comfort to Enemies.
• No person shall be convicted…unless on the Testimony of two Witnesses to the same overt act or on Confession in open Court.

Once the Convention adjourns, two years will pass before the Congress fleshes out more details on the court system. In the interim, the Constitution is ratified by the States, with the threshold of nine in agreement by June 21, 1788, followed by Virginia (June 1788), New York (July 1788), North Carolina (not til November 1789) and Rhode Island (May 1790). During this period, work is also under way to add the amendments to the Constitution which will become known as the Bill of Rights. A total of twelve are passed by Congress on September 24, 1789, and sent out for ratification. It will be December 1791 before ten of the twelve amendments are finally adopted. The 4^th through the 8^th are central to many Supreme Court cases to follow.

Bill of Rights Clauses Affecting Judiciary Proceedings

With the first presidential election only six weeks away, the new National Government is poised to start acting – and on September 25, one day after approving the twelve amendments, Congress passes the Judiciary Act of 1789 which defines the details of the federal court system.

In order to assure that all prior and future laws comply with the dictates of the Constitution (including amendments), the Act calls for a three part judiciary consisting of one Supreme Court, thirteen U.S. District courts (one per State), and three Circuit courts (Eastern, Middle, South), each having its own role in the overall system:

• Federal District courts would hear all maritime case, some civil suits and minor criminal cases involving six month or less prison sentences.
• Federal Circuit courts would focus on more major criminal cases, civil suits involving $500 or more, where the U.S is a plaintiff, an alien is a party, or suits cut across state lines.
• The Supreme Court would handle appeals from the Circuit courts and State supreme courts as well as suits involving diplomats or foreign powers.

The Act is largely the work of Senator Oliver Ellsworth of Connecticut, a Founding Father, who will later serve as the third Chief Justice (1800-1804) of the Supreme Court. The Act passes the Senate by 14-6 and the House by 37-16, with the hold-outs still concerned that State Supreme Court decisions could be overturned at the Federal level.

The size of the U.S. Supreme Court is set at six, one Chief Justice and five Associates. Originally, they are to be together “in session” twice a year, for the months of February and August. But this changes in 1802 to only one typically 4-6 week session beginning on the first Monday of February.

The majority of the year is left for “circuit riding,” with each Justice completing two visits to their assigned Circuit Courts to serve as trial judges on major cases, and to hear other appeals, either affirming or overturning the decisions reached. The intent of this requirement is fourfold: to insure that the Supreme Court Justices become familiar with the wide range of State laws and practices; to advance the sense of national unity; to spot instances where local laws might conflict with the Constitution; and to act as a cost-saving measure by eliminating the need to hire a separate set of Federal judges.

Make-up Of The Early Circuit Courts

Along with riding the circuit come the hazards facing anyone traveling across America’s primitive roads on horseback and carriages or over rivers in makeshift boats and rafts. The Justices are one in registering the physical hardships involved, and in some cases they prove debilitating. Justice William Paterson never fully recovers from injuries suffered when his stagecoach overturns in New Jersey. Samuel Chase almost drowns in the Susquehanna River when his ferry capsizes. Iredell and Cushing literally sacrifice their health covering their territory. Alfred Moore is threatened by hostiles on his South Carolina and Georgia circuit. Marshall breaks his collarbone in a spill in 1812. Justices Tom Johnson and John Blair both resign from the Court to escape the punishments of travel.

In return for their efforts, compensation for the Chief Justice is set at $4,000 per year (about $120,000 in today’s dollars) while the Associates receive $3,500. (By comparison, U.S. Presidents are paid the princely sum of $25,000 per year at the time.)

Between 1789 and the outbreak of the Civil War in 1861, five Chief Justices and thirty-four Associates will serve on the bench. By tradition, the procession is broken out and labelled by the name of the Chief Justice, hence there is the “Jay Court,” the “Rutledge Court” and soforth. The duration of these Courts varies sharply, from the aborted “Rutledge Court” which lasts for only four months, to the nearly thirty-five year run of the “Marshall Court.” So too the burdens and accomplishments will vary sharply across the “Courts.”

The Five “Courts” Up To The Civil War