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The Court Before Marshall

March 2023
2min read

The Supreme Court’s immense prestige in modern times is often traced back to John Marshall, and his decision in the Marbury case that so broadened the Court’s role as an arbiter of national powers. Actually, its foundations were laid at least a quarter century before, in 1780, when a federal Court of Appeal was established under the Articles of Confederation to settle disputes over the disposition of ships taken as prizes. This body heard sixty-five cases before it met for the last time—in Philadelphia, in May of 1787— two days after another group of men assembled in the same city to establish a new and broader national judiciary as part of a new system of government.

Arguments still rage over the precise structure and scope the members of the Constitutional Convention intended to give to the federal court system that emerged from their secret sessions. The language of the Constitution is general:

“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 judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties …” (From Sections 1 and 2, Article III)

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (From Article VI)

These broad definitions caused many who read the proposed Constitution to worry that the federal courts might become too powerful. “There are no well defined limits of the Judiciary powers,” said Elbridge Gerry of Massachusetts, a drafter of the Constitution who had refused to sign the final document. By contrast, others among the Founding Fathers—Alexander Hamilton, for example—looked unhappily on the judiciary as “beyond comparison the weakest of the three departments of power.”

Many of the judiciary’s precise functions and powers remained to be defined by the first Congress assembled under the ratified Constitution, and in the Judiciary Act of 1789 Congress did so. Though this act was partially voided by Marshall in the Marbury case, it still stands—along with the broad wording of the Constitution—as the main basis and definition of the federal judiciary’s authority.

Among the provisions of the act was one creating a chief justice for the Court, and Washington named John Jay as the first man to fill the post. This versatile statesman from New York presided over the Court’s first session, held on February 1, 1790, in the Royal Exchange Building in Manhattan. After two short terms there, Jay and his colleagues followed the rest of the government to Philadelphia. Here the Court stayed for nearly ten years, quartered most of the time in the newly built City Hall.

During these early days, Supreme Court justices were required by the Judiciary Act to sit on the federal circuit courts as well; there, since at first not many cases reached the high tribunal, many important precedents were established. By 1792 the circuit courts had taken these big steps: declared a state law invalid as infringing on a treaty; declared a state law unconstitutional; and, most significantly, declared an act of Congress unconstitutional. Thus the Supreme Court had a precedent for the Marbury decision.

Upon his election as governor of New York in 1795, Jay resigned. One of his original associates, John Rutledge, who had left to become chief justice of South Carolina, was recalled by Washington to take Jay’s post. He took the oath of office and actually presided over one term, only to have his nomination turned down by the Senate because of antiFederalist remarks he was alleged to have made, After an extended search Oliver Ellsworth—chief drafter of the Judiciary Act, staunch Federalist, and former head of Connecticut’s highest court—was appointed and confirmed.

The Court held its last term in Philadelphia in August of 1800, reconvening the following February in the new capital district on the Potomac. And with its new home, there came a new Chief Justice. Ellsworth had resigned because of illness, Jay had declined reappointment, and President John Adams unexpectedly submitted to the Senate the name of his Secretary of State, a forty-five-year-old former congressman who had never held a judicial office. On January 27, 1801, John Marshall of Virginia was confirmed as the nation’s fourth Chief Justice. Under his tutelage the young Court was to achieve powerful maturity.

—Wade Greene

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