The Supreme Court
The Supreme Court honors historical lawgivers in its main chamber. Biblical figures include Moses and Solomon. Other country's lawgivers are represented by their political leaders or monarchs such as Confucius, King John, Napoleon, and Charlemagne. Only the United States is represented by a lawgiver that was a judge—Chief Justice John Marshall.
That shows how much power and respect we give to the Supreme Court of the land. This wasn't always so. Marshall is credited through his early leadership with developing our unique court structure—where the Supreme Court can overturn the legislature and has the final word on the constitutionality of a law.
We'll step back in time and visit the early days of the Supreme Court, review John Marshall's contributions and discuss the key cases that gave the court its power and the United States its foundation.
Setting the Stage
Let's start by looking at the stature of the court before Marshall took over as chief justice. Remember we mentioned that the court met only twice a year, in February and August. When it met for the first time on February 2, 1790, there were no cases to be decided. The same was true for the next two sessions. Instead the Supreme Court justices did most of their work on the road “riding the circuit,” as we discussed.
An injunction is an order issued by a court that orders someone to do something or prohibits someone from doing something. For example an injunction may be ordered to prevent the cutting down of trees, prevent the polluting of a stream or stop a group from picketing if their plans go beyond the bounds of free speech and assembly.
While the justices delivered their first opinions in August 1792 in a case titled Georgia v. Bradford, it was not until February 1793 that the justices actually decided their first important case. The Bradford case was a request from the state of Georgia for an injunction to stop the recovery of money by a British subject, whose estate had been confiscated. Georgia was given the temporary injunction by the Supreme Court in that first case.
Opinions in the early days of the court were not delivered formally in writing, as they are today. Instead during the first 10 years of the Court each justice gave his opinion orally at a session of the Court. During the first 10 years of the Court it heard only about 100 cases. As we've already discussed, today's Court hears that many in one year. At that time the Court heard all cases brought before it. Today the Court has much more discretionary power over which cases it will hear and picks only about 100 out of 7,000.
Constitutional amendments alter the language of the original draft of the U.S. Constitution. The Constitution can be changed either through an amendment proposed by two-thirds of both houses of Congress or by a call for a constitutional convention by two-thirds of the state legislatures. The legislatures don't have the right to draft the new amendment, but they can ask the Congress to convene a special amendment proposal convention. So far every amendment to the constitution has been made by Congress. No one even knows what the logistics would be if a call were made for a constitutional convention.
The first actual ruling on a case came in February 1793 in Chisholm v. Georgia. This case established the right for citizens of one state to sue another state. Chisholm, a resident of South Carolina, sued Georgia because he had delivered goods to Georgia but Georgia didn't pay for the goods. Georgia claimed immunity from begin sued. The Supreme Court ruled that Georgia was subject to suit.
The right to sue states didn't last long though. This ruling led to such an uproar by the states that the Congress passed the Eleventh Amendment to the Constitution on March 4, 1794. This amendment bans suits from being filed by individuals of another state or of a foreign country against a state. Just 339 days later on February 7, 1795, the amendment was ratified and took effect January 1798.
The Supreme Court first ruled on the right to overturn a state legislature in 1796 in the case Ware v. Hylton. In this case a citizen of Virginia owed money to a British subject. Virginia had enacted a law that confiscated British property, including any debts owed by its citizens to British subjects. The British subject filed suit to collect his money.
The Supreme Court overturned the state law because the Treaty of Paris, which established peace after the Revolutionary War, protected such debts. Justice Samuel Chase in his opinion said, “A treaty cannot be the supreme law of the land if any act of a state Legislature can stand in its way.” Just think what the United States would be like today if each state could decide whether or not it wanted to abide by a treaty signed by the federal government.
Interestingly, John Marshall, who at that time was a practicing attorney in Virginia, argued against overturning the state law by questioning the right of the judiciary to invalidate a state law because that right has not been given to it by the Constitution. As we'll discuss below, John Marshall is most famous for the court ruling that established the Supreme Court's right to overturn a law passed by Congress. He also ruled the right to overturn a state legislature in a second famous case we'll discuss later.
A Supreme Lack of Priority
“That the task of holding twenty-seven circuit Courts a year in the different States, from New Hampshire to Georgia, besides two Sessions of the Supreme Court at Philadelphia, in the two most severe seasons of the year, is a task which considering the extent of the United States, and the small number of judges, is too burdensome.”
—Letter from the Justices to Congress in 1792, The Documentary History of the Supreme Court of the United States, 1789-1800
Justices did not keep their position on the court very long. Many left because they complained about the travel. The first chief justice, John Jay, resigned to become governor of New York. Can you imagine a Supreme Court justice giving up his or her seat to run for political office today?
In addition to having very few cases that needed to be decided, many of the justices who served on the Supreme Court in the first 10 years did not make the Court their first priority. Chief Justice John Jay served from 1789 to 1795 before leaving court to be governor of New York. While on the court, he also served as Special Ambassador to England in 1794.
Chief Justice Oliver Ellsworth, who served from 1796 to 1800, also served as a special U.S. envoy in France for the last year of his term. In that year Justice William Cushing, who served on the court from 1789 to 1810, was too sick to attend the August term. In addition, Justice Samuel Chase was too busy working on President John Adams' reelection to be at the August session. Since there were only six justices, the Supreme Court could barely function during the year before John Marshall was appointed to the court.
This lack of priority for a court appointment led Alexander Hamilton to write in The Federalist, “The judiciary is beyond comparison the weakest of the three departments of power.” Without a strong leader, the Supreme Court was destined to fail.