Supreme Court (History)

• Author: Paul A. Freund
• Pages: 2588-2595

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The only court whose existence is mandated by the Constitution is the Supreme Court. Article III states: "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." Besides its existence, a few attributes are constitutionally entrenched by Article III. The tenure of the judges is to be "during GOOD BEHAVIOR, " and their compensation "shall not be diminished during their continuance in office." These provisions, modeled on English law and made applicable to all federal judges, were obviously intended to assure the independence of a judiciary appointed, pursuant to Article II, by the President with the ADVICE AND CONSENT of the SENATE.

Other features having a bearing on the character and independence of the Court were not addressed, presumably to be left at large or determined from time to time by Congress. Qualifications for membership on the Court were not specified; nor were the size of the Court, the period of its TERMS, or the level of the judges' compensation. The Court was to have both ORIGINAL JURISDICTION and APPELLATE JURISDICTION, but the latter was subject to "such exceptions, and under such regulations, as the Congress shall make." Nothing was said concerning the relation of the Supreme Court to the courts of the STATES.

Thus from the outset the Court was only partially sheltered from the politics of republican government. The status of the Court was one of those creative ambiguities that have marked the Constitution as no less an organism than a mechanism, Darwinian as well as Newtonian. The position of the Court may have been in the mind of an eminent modern foreign-born mathematician who, contemplating American CITIZENSHIP, regretted that he could not swear allegiance to the Constitution because "it is full of inconsistencies." In a self-governing nation, to be sure, the Court is detached but not disengaged, distant but not

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remote. Therein lay its potential either for popular neglect and scorn or for power and prestige.

The need for a federal judiciary, and so for an ultimate tribunal, was felt by the Framers as part of the transition from a confederation to a federal union. The ARTICLES OF CONFEDERATION supplied no such institution, except a supreme tribunal for prize and admiralty cases. A system of federal courts, parallel to those of the states, was one of the innovative conceptions of 1787. Their function was to serve as impartial tribunals, free of local bias, in suits between states, or controversies involving citizens of different states or a foreign country; to establish a uniform interpretation of federal laws; and to maintain the supremacy of federal law in cases where a state law conflicted with the Constitution, federal statutes, or treaties of the United States. In sum, the JURISDICTION OF THE FEDERAL COURTS could rest on the nature of the parties or of the question presented. Only in cases where a state, or a foreign country or its diplomatic representative, was a party was the Supreme Court given original (nonappellate) jurisdiction.

These skeletal provisions of Article III were fleshed out by Congress in the JUDICIARY ACT OF 1789. That act set the number of Supreme Court Justices at five associate Justices and one CHIEF JUSTICE, with salaries of $3,500 and $4,000, respectively. (The monetary differential remained at $500 until 1969, when it was increased to $2,500.) Three provisions of the act led to developments that proved to be of seminal importance for the prestige and power of the Supreme Court: a requirement that the Justices serve on regional CIRCUIT COURTS ("circuit riding"); a provision in section 13 that seemed to grant original jurisdiction to the Court to issue WRITS OF MANDAMUS; and a grant of power in section 25 to review the decisions of state supreme courts in cases turning on the Constitution, laws, or treaties of the United States. Each of these merits attention.

The circuit duties meant sitting with a federal district judge to form a circuit court, which heard appeals from district courts and had original jurisdiction in diversity of citizenship cases. In the early years circuit riding consumed the greater part of a Justice's time and surely his energy; travel by carriage or horseback over rough roads and stopovers at uncomfortable inns resulted in a weariness of flesh and spirit, against which the Justices complained bitterly, but which they forbore to resist. Yet these excursions into the local courthouses brought them into touch with lawyers, journalists, and townspeople, and gave a reality to the Supreme Court that its functioning in the capital city could not match. Moreover, the assignment of each Justice to a particular circuit affected significantly the appointments to the Court, for a vacancy on the Court would normally be filled by an appointment from the same circuit, and so at any time the practical range of nominees was limited and the influence of a small group of senators was proportionately great. Not until 1891, with the passage of the CIRCUIT COURTS OF APPEALS ACT, were the Justices fully relieved of circuit-riding duties. Thereafter geography played a decreasing role in appointments. A striking instance was the widely acclaimed appointment by President HERBERT C. HOOVER in 1932 of Judge BENJAMIN N. CARDOZO of New York to succeed Justice OLIVER WENDELL HOLMES of Massachusetts, although two New Yorkers, Chief Justice CHARLES EVANS HUGHES and Justice HARLAN FISKE STONE, were already on the Court. A comparable instance was the appointment by President Reagan in 1981 of Judge SANDRA DAY O'CONNOR of Arizona to succeed Justice POTTER STEWART of Ohio even though another Arizonan, Justice WILLIAM H. REHNQUIST, was already serving.

As circuit riding was a cardinal factor in gaining popular recognition of the Court (at considerable cost to the Justices) and in determining appointments, so did the practice furnish an early opportunity for the Court to judge the validity of an act of Congress. In the waning days of the Federalist administration, Congress passed the JUDICIARY ACT OF 1801, compounded of partisanship and principle, which created new judgeships and abolished circuit riding. When the Jeffersonians took office, however, they countered with the Judiciary Act of 1802, which abolished the judgeships and restored circuit riding. Chief Justice JOHN MARSHALL, sensing a political crisis for the Court, solicited the opinions of his brethren on the question of complying with the law or treating it as beyond the authority of Congress. The Justices had serious doubts about the law's validity, and a strong distaste for the resumption of the burden it imposed, yet a majority counseled compliance, in accord with Marshall's own inclination. But a private litigant, defeated in a circuit court in Virginia at which Marshall himself presided, appealed to the Supreme Court, arguing the unconstitutionality of the 1802 act. The Congress, fearing a judgment voiding the act, had abolished the 1802 term of the Supreme Court. When the case, STUART V. LAIRD, was decided, in February of 1803, the Court, with Marshall not participating, surprised and gratified the Jeffersonians by upholding the act, in a brief opinion which simply declared that acquiescence by the Court in circuit duty for twelve years under the Judiciary Act of 1789 had given a practical construction of the Constitution that would not now be disturbed. That the Court would at least consider the validity of an act of Congress had been resolved just six days earlier in the landmark case of MARBURY V. MADISON (1803).

That case, establishing the power of JUDICAL REVIEW of acts of Congress, marked the second of the three germinal

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developments from the Judiciary Act of 1789. Section 13, which gave the Court power to issue mandamus and other writs, might have been read simply as conferring the power where the jurisdiction of the Court rested on one of the grounds specified in Article III. But the Court was not of a mind for so narrow a reading. When William Marbury of Maryland invoked the original jurisdiction of the Court to enforce a right to an office of justice of the peace pursuant to an appointment by President JOHN ADAMS, and sought a mandamus to compel Secretary of State JAMES MADISON to deliver his commission, the Court regarded section 13 as conferring jurisdiction, and as so construed beyond the ambit of original jurisdiction defined in Article III. The suit for mandamus was therefore dismissed, again to the gratification of the Jeffersonians, but in the process the Court had declared the far more significant principle that in the decision of a case where a federal law was arguably incompatible with the Constitution, the Court, in deciding what "the law" was, must, if necessary, vindicate the HIGHER LAW and treat the legislative act as ineffectual.

Despite some provocative language in Marshall's opinion (the executive branch cannot "sport away" the rights of others), the Jeffersonians focused on the immediate result and regarded it as a victory at the hands of a still-Federalist Court. Indeed, judicial review was not then the divisive party issue; the Jeffersonians would have welcomed a Supreme Court decision holding the Sedition Act of 1798 unconstitutional. Whether Marshall's doctrine of judicial review was a usurpation later became a subject of heated debate, scholarly and unscholarly. Although the Constitution contains no specific mention of the power, and although Marshall's opinion, resting on the logic of the decisional process, can be said to beg the question of who is to decide, the debates in the CONSTITUTIONAL CONVENTION do indicate obliquely an acceptance of the power, in explaining the rejection of attempts to involve judges in an extrajudicial power of veto of legislation. But the debates were not cited in Marbu...