The Supreme Court

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Brought to life by the Judiciary Act of 1789, the Court took up its duties on February 2, 1790, in the old Royal Exchange at the foot of Broad Street in New York. Despite the splendor of this occasion—John Jay, the forty-four-year-old Chief Justice, was handsomely clothed in “an ample robe of black silk with salmon colored facings,” and the other four justices present were similarly arrayed—it was clear to everyone that the Court had little business to conduct. In fact, Associate Justice Robert Harrison thought so little of his appointment that he refused to attend the session and later resigned his position. The Court’s initial calendar apparently justified his disdain. A number of lawyers were admitted to practice, but no cases were presented for argument, and within ten days the Court adjourned.

For the next decade the bleakness of that record remained unchanged. The Court was the backwater of the legal world; few issues of consequence came before it, and the nation’s legal talent generally turned its attention to the state courts or, on the federal level, to Congress. Of the hrst fourteen appointees to the Court five (includingjohn Jay) resigned after relatively short terms, one failed of Senate confirmation, and three refused outright the opportunity to serve. When the new government moved to Washington in 1800, the low prestige of the Court was visibly demonstrated by the architects’ failure to provide it with a chamber in the new Capitol. Eventually—and rather hastily—quarters were established in a small room (twentyfour by thirty feet) on the building’s main floor, just in time for the 1801 term.

That term proved to be the turning point in the Court’s history, for it was marked by the appointment of John Marshall as Chief Justice. Despite some initial resistance from Federalists who had hoped to see an associate justice promoted—one senator recorded that he had heard the news of Marshall’s nomination “with grief, astonishment and almost indignation”—the Senate voted unanimous approval and thereby set the stage for a dramatic reversal of the judiciary’s fortunes.

Over the next thirty-four years, as the volume of cases increased, the great Virginian made the Court an effective instrument and a central force in the government. Beginning with Marbury v. Madison (1803), which established the principle of judicial review for federal legislation, and continuing with Fletcher v. Peck (1810), which carried that principle to the states, Marshall delivered a series of magisterial opinions that confirmed the primacy of federal power and, more importantly, made the Court a coequal branch with the Presidency and Congress. By the time of his death in 1835 the high bench had earned a respect that through the next century grew into something approaching reverence.

In our own day the Supreme Court sits at the apex of a judicial system unlike any other in the world. The cornerstone of its authority is its power to review the constitutionality of statutes emanating from Congress and the state legislatures. But it draws an equal measure of eminence and strength from its constitutional charge as the court of last resort, in a jurisdiction that extends to the courts of the fifty states and, simultaneously, to the general and specialized elements of the federal judiciary.

Herewith some highlights and details.

Appointment to the Supreme Court is made by the President “with the Advice and Consent of the Senate.” Because there are no statutory requirements for the federal judiciary at any level, the selection process is inevitably colored by a number of complex personal and political considerations that vary with each executive, particularly in determining the ideological make-up of the Court.

Nonetheless there are certain traditional—if informal—guidelines that may control a President’s choice, among them the unwritten rule that only a lawyer may be elevated to the high bench; that a nominee must be personally acceptable to his home-state senators and preferably to the Senate leadership as well; that the nominee’s public career shall be sufficiently distinguished to warrant his appointment. In addition, a variety of geographical, religious, and educational factors are given weight. For example, in the last forty years one seat has been customarily designated as Roman Catholic and another as Jewish, although a President may ignore the custom, as Mr. Nixon did in 1969 when he replaced Mr. Justice Fortas with a Protestant.