Supreme Court

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.

That excerpt from Article III of the U.S. Constitution is typical of that document's statements about the structure of the federal government. It provides a broad outline, to be fleshed out by acts of Congress, and by custom and practice. There's a bit more to Article III than just that, but the whole thing is only six paragraphs.

In the wake of reports that Associate Justice David Souter plans to retire soon, which would again plunge Washington into the process, increasingly complicated in the last few decades, of choosing a new justice, I will write a series of posts about the Supreme Court and its history. My plan is to show how those six paragraphs drafted in 1787 have evolved into the federal judiciary that we know today.

The First Congress enacted the Judiciary Act of 1789 which, among other things, established the original number of Supreme Court justices at six, a detail that the Constitution had not addressed. Congress has changed that number over the years; it has been set at nine since 1869.

Then, as now, federal judges, including Supreme Court justices, were appointed by the president, subject to confirmation by a simple majority in the Senate.

Once the court was staffed, a major issue was not having enough to do. With very limited exceptions, the Supreme Court is set up to consider appeals from lower-court decisions. By their nature, such cases take some time to work their way through the system. So, an appellate court is not going to start hearing cases on day one.

But, the realities that the country was still small, and federal law did not yet reach into all of the areas it does today, were bigger factors. Government in general was smaller, and the balance between state and federal power leaned much more toward the states, than is currently the case.

One implication was that the first chief justice, John Jay, had so much time on his hands, he was able to sail to London, and spend several months negotiating what came to be called the Jay Treaty with Britain.

Also, the justices used up some of their spare time by "riding circuit", i.e., going out to hear cases in the lower federal courts, in conjunction with the judges appointed to those courts. That practice continued until 1891.

Next: John Marshall's impact on American law.