Starting the Supreme Court

The U.S. Supreme Court is back on the front page of the news--with the retirement this month of Justice David Souter and the nomination of Judge Sonia Sotomayor to fill his Supreme Court shoes.

Others will provide the opinion. Our job is to arm you with knowledge about the Supreme Court. Today, we'll see how the Supreme Court got started. Tomorrow, we'll meet the supremest chief justice of all. Then, we'll get really litigious.

The Constitutional Clauses

Article III of the U.S. Constitution says that "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 article goes on to guarantee that federal judges "shall hold their offices during good behavior" (that is, for life, unless they misbehave) and to limit the federal courts' jurisdiction. It doesn't say much else. Article I, which deals with Congress, and Article II, which deals with the presidency, are much more detailed. The framers mostly left it to Congress to decide how the federal courts should work.

The Original Supremes

Congress responded with one of its first-ever acts, the Judiciary Act of 1789. Drafted largely by Connecticut's Oliver Ellsworth, who would later serve as chief justice himself, the act created a three-tiered federal judiciary, with one Supreme Court, three regional circuit courts, and federal district courts for the states.

The first Supreme Court consisted of Chief Justice John Jay and five associate justices. (The number of justices, now nine, has varied between six and ten over the years--and technically, Congress can change the number at any time.) When that first Court convened in 1790, it had more curious onlookers than cases.

The job wasn't as cushy back then, either. Twice a year, the justices had to "ride circuit"--travel the country to hear cases--with two justices assigned to each of the nation's three circuit courts. Traveling the country was tedious and sometimes dangerous, and circuit court duties nearly made Chief Justice Jay resign. In 1793, after many complaints, Congress decided one circuit ride per year would be enough. (Supreme Court justices would ride circuit until 1891, when Congress created the federal appeals court system.)

Overruled

Also in 1793, the Court made one of its first major decisions, in the case of Chisholm v. Georgia. The big question in the case was whether citizens of one state could sue another state in federal court. The Supreme Court ruled that they could, holding that to rule otherwise would "far deviate from the plain path of equality and impartiality." The decision proved highly unpopular, especially among those concerned with states' rights. In response, Congress passed, and the states ratified, the Constitution's 11th Amendment:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

That reversal wasn't the end of the early Court's struggles. After John Jay resigned to become governor of New York in 1795, the Senate rejected President Washington's appointed replacement, John Rutledge. Washington then asked Virginia patriot Patrick Henry to take the job, but Henry declined. In 1796, Oliver Ellsworth became chief justice, but the Court didn't really get rolling until 1801, when Chief Justice John Marshall took the reins. We'll return to see the Marshall Court in action tomorrow.