The First U.S. Supreme Court

November 5, 2010

The United States Constitution created the court which is now charged with upholding and protecting its principles.

Article III of the U.S. Constitution reads as follows:

“[t]he 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.”

So the Constitution established the Supreme Court, but it failed to spell out the specific duties, powers, or organization of the Court. Instead, it was left to Congress and to the Justices of the Court itself to fill in the details as to the shape, function, authority, and logistics of the Judicial Branch of government.

The Judiciary Act Of 1789

The first bill introduced by the United States Senate was the Judiciary Act of 1789.  Principally authored by Senator Oliver Ellsworth of Connecticut, the Judiciary Act was signed into law by George Washington on September 24, 1789.  The Act  divided the country into 13 judicial districts, which were further organized into the Eastern, Middle, and Southern “circuits.” The 1789 Act called for the Supreme Court to consist of a Chief Justice and five Associate Justices, and for the Court to meet, or “sit” in the Nation’s Capital.

The Act provided for two court terms annually, one beginning the first Monday in February, and the second beginning on the first Monday in August.

The Supreme Court Justices were required to “ride circuit,” holding court twice a year in each of the judicial districts.  This arduous task was the cause of much complaining among the Justices, since travel at the time was slow and difficult.

The Act also created the position of U.S. Attorney General and assigned the power to nominate Supreme Court justices to the President of the United States with the approval of the Senate.

Composition Of  The Court

George Washington chose John Jay as Chief Justice of the first Supreme Court. Actually, Washington allowed Jay to choose from a number of important positions in the new nation, and Jay chose to be Chief Justice of The Supreme Court. At the time, Jay was U.S. Secretary of Foreign Affairs and a close political ally of Washington. The Secretary of the Senate was quoted as saying that Jay “is waiting to see which salary is best, that of Lord Chief Justice or Secretary of State.” I guess the Supreme Court must have paid better. Jay was described at the time as “neither a brilliant advocate nor a profoundly learned lawyer nor a master of the technique of practice.”  He was seen instead as “rather a statesman and jurist than a pleader of causes.”

These were the Justices of the first U.S. Supreme Court as appointed by George Washington in 1789 :

John Rutledge resigned from the court in 1791. Washington appointed Thomas Johnson to fill his seat.

Early Decisions

The new U.S. Judiciary spent its first decade as the weakest of the three branches of government. Early federal courts failed to issue strong opinions or even take on controversial cases. Opinions were written “seriatim,” meaning that each Justice wrote an opinion on each case. It is widely believed that no important cases came from this first Supreme Court, but that is not entirely accurate. There is a school of thought that the Justices who served on the First Supreme Court advanced the idea of  judicial review that culminated in Marbury v. Madison before Justice Marshall’s famous decision. If you are interested in reading an excellent collection of well researched historical articles about these jurists and their accomplishments, I recommend Seriatim: The Supreme Court Before John Marshall 

As I wrote in a prior post, Chief Justice Jay wrote one of the majority opinions in the case of Georgia v. Brailsford. This case asserted for the first time in U.S. history a jury’s right to nullify a verdict. Jay wrote that “It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision… you [juries] have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

Jay also wrote one of the majority opinions in Chisholm v. Georgia (1793) . Jay was an ardent federalist, and years earlier had written a number of articles that later became part of what is now known as the Federalist Papers. In Chisholm, a merchant was owed money by the State of Georgia for the sale of supplies during the Revolutionary War. Georgia refused to pay, citing sovereign immunity. As Justice Iredell wrote in his decision, the case presented the crucial issue of whether a state could be sued in a federal court by citizens of another state. The Jay Court ordered Georgia to pay the debt, holding that Article III granted the Supreme Court power to enforce the debt.  This was a very controversial decision at the time, and in fact was the impetus for passage of  the Eleventh Amendment. So Chisholm has the distinction of being the only Supreme Court decision that was overturned by a Constitutional Amendment. More than that, it is an early example of the court advancing the notion of judicial review.

In Hylton v. United States, decided in 1796, the Court reviewed a congressional tax on carriages to determine whether it was constitutional. The Court decided it was, but declared its power to decide otherwise.  Hylton v. Ware, decided in 1796, and Calder v. Bull, decided in 1798, asserted for the first time the Supreme Court’s power to review a state law on constitutional grounds. Hylton v. Ware is notable for the fact that John Marshall was the attorney arguing on behalf of the State of Virginia that the federal government did not have review power. Had he won, U.S. constitutional law may have been very different. Later, as Chief Justice, John Marshall wrote the majority opinion in Marbury v. Madison, which established the Supreme Court’s power of judicial review of laws passed by Congress.

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