Supreme Court

The judicial Power of the United States shall be vested in one supreme Court....

Article III, Section 1

When the Constitutional Convention opened in Philadelphia, the very existence of a national judiciary was at issue. Delegates who favored state power argued that national laws could be enforced by state courts, whereas others, such as James Madison, foresaw the need for national judicial power. The "one supreme Court" created by the Constitution reflected ambivalence over the nature and scope of this power, and the Framers left to Congress significant discretion to determine the number of Supreme Court Justices; the establishment, structure and jurisdiction of a lower federal judiciary; and the ability to make exceptions to the Court's appellate jurisdiction.

While considering the question of a unitary executive, the delegates to the Constitutional Convention concluded that the judiciary was to be a legal rather than a political body. The Convention rejected the notion that the judicial branch should be any part of a proposed "Council of Revision," which would have overseen the executive power to exercise a veto or to revise laws. Elbridge Gerry remarked that it was foreign to the nature of the judicial office to judge the policy of public measures. Rufus King argued that judges have to consider laws afresh, without having participated in making them.

Following the implicit command of the Constitution, Congress created a Supreme Court in the Judiciary Act of 1789 and set the number of Justices at six. The Judiciary Act also established a subordinate federal judicial structure of several district and three circuit courts, each of the latter including two "riding" Supreme Court Justices (reduced to one in 1793). The act also gave the Supreme Court appellate jurisdiction over federal questions growing out of litigation in state courts, thus cementing national power, while at the same time allowing state courts to make determinations on federal questions prior to final appeal. However, the act also confined the Supreme Court to questions of law rather than fact—an appellate limitation unusual for the time. This innovation was aimed at calming residual fears of national judicial power overturning local jury findings.

The first Chief Justice, John Jay, confirmed the intention of the Framers by insisting on the legal, rather than political, function of the Court and its Justices. In Hayburn's Case (1792), he wrote on circuit that Congress could only assign properly judicial tasks to the judiciary, thus upholding federal judges' refusal to act as pensions claims adjudicators. Jay, speaking for the Court in a letter to President George Washington, also declined to render an advisory opinion Washington had requested concerning treaty interpretation.

In Marbury v. Madison (1803), Chief Justice John Marshall deftly reinforced both federal judicial power and the notion of the Court as a legal body. He did so by refusing to enter into a political dispute on the grounds that Congress could not constitutionally grant to the Court powers not authorized by the Constitution—in this case, the power to issue a writ of mandamus. Underlying Marshall's reasoning is the idea that the Constitution itself is a law to be interpreted by courts, and that courts cannot decide "questions in their nature political," or force coequal branches to perform political or discretionary acts.

The Federalist Congress reduced the number of Justices sitting on the Supreme Court to five by the Judiciary Act of 1801, hoping to prevent incoming President Thomas Jefferson from appointing a Justice when the sixth sitting Justice retired. The 1801 Act also established separate Circuit Court judgeships, obviating the need for Supreme Court Justices to ride circuit. But such riding—and a Supreme Court of six—were quickly reinstituted under President Jefferson, who was suspicious of national judicial power and desirous of keeping Justices in contact with local mores. As the nation expanded, so did the number of circuits and the number of Supreme Court Justices to sit on them. The number of Justices also expanded and contracted due to the politics of the Civil War and its aftermath, first from nine to ten to support President Abraham Lincoln's war policies, then to seven to deprive President Andrew Johnson of several appointments. Since 1869, Congress has set the number of Justices at nine, despite a threat by President Franklin D. Roosevelt to increase the Court's size to suit his political agenda.

Bradley C.S. Watson
Philip M. McKenna Chair in American and Western Political Thought
Chairperson of the Department of Politics
Co-Executive Director of the Center for Political and Economic Thought
Department of Politics
Saint Vincent College