The Development of Judicial Power

No Clear Mandate. When the first Congress met in 1789 to determine the makeup of the new federal court

system, they were writing on a blank slate. The Constitution provided no clear expression of how the federal judicial system should be organized. This may have been a natural consequence of the intense focus of the Founding Fathers on the relationship between the new chief magistrate, the president, and the elected representatives of the people in Congress. As James Madison wrote in Federalist, number 37, “no language is so copious as to supply words and phrases for every complex idea.” Indeed, Article III does not say much about the judicial power of the United States other than it “shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

New Law. The Judiciary Act of 1789 implemented the vague and undeveloped Article III of the Constitution. Led by Connecticut senator Oliver Ellsworth (later U.S. chief justice), Congress provided for a six-member Supreme Court consisting of five associate members and one chief justice. A district court system of thirteen courts was established, as well as three circuit courts, comprising large geographical boundaries. Each circuit court was composed of the resident district court judge plus two Supreme Court justices assigned to that particular region. In a reflection of Federalist nationalist sentiment the 1789 act brought state courts under federal appellate jurisdiction by allowing the Supreme Court to hear appeals brought from state courts in cases where the supremacy of the federal Constitution was at issue.

Loyalist Property Cases. The first cases of real significance that came to the attention of the Supreme Court concerned disputes arising from the terms of the Peace Treaty of 1783. Article IV of the treaty declared that creditors from either England or America could recover debts existing before the Revolutionary War and demand payment in British sterling money. This was a problem for many Americans because several states had passed laws expunging debts owed to British bankers and merchants. Moreover, those American debtors who had money had it in the form of state pounds, not paper currency sterling. As a result American money was not good for the repayment of these debts even if someone wanted to repay them.

Chisholm v. Georgia. In 1793 the Supreme Court heard the claims of a South Carolina man acting as the executor on behalf of a British merchant. The executor brought suit against the State of Georgia for the value of clothing supplied by the merchant during the war. Georgia declared that as a sovereign and independent state it was not subject to suit in a federal court. The question gave the Supreme Court its first opportunity to rule on the scope of federal authority. The Court, with only Justice James Iredell in dissent, entered a default judgment against Georgia and declared that when it joined the Union, the state left its sovereignty behind in matters such as the enforcement of national peace treaties. This decision, known as Chisholm v. Georgia, touched a nerve across the nation, where notions of federal supremacy were not universally embraced. It led to the adoption of the Eleventh Amendment, which forbids a citizen of one state to sue another state. (This remains the only time in the nation’s history that a decision of the Supreme Court was reversed by constitutional amendment.) The Court again upheld the terms of the peace treaty in Ware v. Hylton (1796), when a Virginia statute attempted to negate debt repayment. The Court made its point clearly: a treaty “cannot be the supreme law of the land … if any act of a state legislature can stand in its way.” These loyalist property cases highlighted the constitutional role of the Supreme Court as the official referee of disputes between the states and the new federal government.

Revolution of 1800. Thomas Jefferson’s election to the presidency, and with him the election of a Republican Congress, created fear among Federalists that they would lose all of their national power. The last Federalist Congress took matters into its own hands with the enactment of the Judiciary Act of 1801. They created six new circuit courts and sixteen new circuit court judges, as well as several justices of the peace. The 1801 act also reduced the Supreme Court from six to five members in an effort to delay any opportunity for Jefferson to fill vacancies on the high court. John Adams, as a lame-duck president, eagerly filled these positions and was roundly criticized by Jefferson and his party for doing so. One Virginia Republican, William Branch Giles, expressed the view that “it was natural for [the Federalists] to look out for some department of the government in which they could entrench themselves.” Jefferson’s Republican majority in Congress quickly repealed the 1801 act. The Republicans then enacted their own law delaying the next session of John Marshall’s Supreme Court until February 1803.

No Meeting Place. When Marshall agreed to become the nation’s third chief justice, he was taking on a largely undefined and unrespected role. Alexander Hamilton had tried to reassure readers of The Federalist (1788) that they had nothing to fear from “the natural feebleness of the judiciary.” In its early years the Court’s lack of significant cases and the reversal of Chisholm v. Georgia by enactment of the Eleventh Amendment proved Hamilton’s prediction to be accurate. The Court was not even seen as a choice political appointment. Associate Justice John Rutledge resigned from the Court in 1791 to accept appointment as chief justice of the high court of South Carolina. When John Jay declined reappointment as chief justice in 1801, he wrote to President John Adams that the judicial branch “would not obtain the energy, weight and dignity which are essential to … the public confidence and respect which, as the last resort of the justice of the nation, it should possess.” The Supreme Court was so poorly thought of in the pre-Marshall years that it was literally a branch of government without an official meeting place. In 1801 the outgoing Speaker of the House of Representatives proposed to Congress that the Supreme Court be housed in the Capitol Building. The Court met in a small, drafty room on the Capitol’s ground floor, described by one visitor as having a “cellar-like aspect,” until 1808.

Marshall Takes Command. At eleven in the morning on Wednesday, 4 February 1801, Associate Justice William Cushing of Massachusetts administered the oath of office as chief justice to John Marshall. The new Supreme Court judge was still the nation’s secretary of state and would be until replaced by Republican James Madison a little over one month later. In the rush of events during the final months of John Adams’s Federalist administration, Marshall left a few matters unattended. He inadvertently left behind one commission for justice of the peace for the District of Columbia. When Marshall’s successor as secretary, James Madison, came across the undelivered commission, he refused to deliver it to its intended recipient, William Marbury. Without the commission Marbury could not serve, and he sued Madison, seeking to compel the delivery of the commission. This seemingly minor set of circumstances set the stage for what was arguably John Marshall’s most important decision: the authority of the Supreme Court to interpret and enforce the laws.

Judicial Review. The decision of the Supreme Court in Marbury v. Madison (1803) established the doctrine of judicial review—the power of the Court to decide conclusively what the Constitution and other laws mean. Marbury brought his lawsuit directly before the Supreme Court, invoking the original jurisdiction of the Court pursuant to the Judiciary Act of 1789. Marshall took the case and asked a simple question: was Marbury entitled to his commission? The answer was “yes” because when President Adams signed it, the commission became a “vested legal right.” The next question was whether Mar-bury had a remedy for this violation of his rights. Mar-bury thought he did when he presented a writ of mandamus (an order from a court commanding that a specified action be taken) pursuant to the Judiciary Act of 1789. Marshall declared, however, that Marbury had no recourse because Congress had no ability to grant the Supreme Court the power to issue a writ of mandamus. The Court’s original jurisdiction came only from the Constitution. Therefore the Judiciary Act of 1789 conferring this additional authority on the Court was an unconstitutional act. Finally, Marshall declared and defended his authority to invalidate an act of Congress. The Constitution was the “fundamental and paramount” law of the land, and it was “emphatically the province and duty of the judicial department to say what the law is.” “If two laws conflict with each other,” Marshall reasoned, “the courts must decide on the operation of each. So if a law be in opposition to the Constitution … the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.” William Marbury did not receive his commission, but John Marshall found the opportunity to assert the constitutional role and purpose of the Supreme Court. From this decision all future decisions flow as a natural extension of Marshall’s articulate expression of the proper function of the Court in a federal system.

The Madison Years. The authority of the Court grew significantly during the administration of James Madison (1809–1817). Weary of the lingering partisanship of the Jefferson years, the Court—which in 1809 was comprised of three Jefferson appointees—did its work unencumbered by political intrigue. In a series of decisions the Court affirmed and enlarged the principles of constitutional nationalism suggested in Marbury v. Madison. In 1809 the Court decided in United States v. Peters that the Pennsylvania legislature had no authority to enact a law designed to reverse a federal district court decree. To allow a state legislature to do so would make the Constitution “a solemn mockery,” wrote Marshall. The chief justice expanded on this view in 1810 in Fletcher v. Peck, the decision that finally resolved the Yazoo Land Fraud dispute.

Corruption in Georgia. The Yazoo Land Fraud traced its beginnings back to 1794, when a corrupt Georgia legislature sold about thirty-five million acres of land (present-day Alabama and Mississippi) to four New England land companies for one and one-half cents an acre. The action was seen as a gross betrayal of the public trust, particularly since every legislator personally profited from the sale. Public outrage was so great that the entire legislature was voted out of office in 1796, replaced by new leadership which undertook as its first order of business the revocation of the land sale. This put in doubt the validity of the original sale of land.

Fletcher v. Peck. In order to clear title on the land Robert Fletcher of New Hampshire sued John Peck of Massachusetts in 1803, claiming that Peck’s attempt to sell him part of the Yazoo tract was of no effect since Peck’s interest in the land had expired with the vote of the second Georgia legislature. Peck defended himself by claiming that the Georgia legislature had no right to interfere with his original grant of title. Could the state of Georgia lawfully rescind the contracts which a previous, corrupt legislature entered into? Marshall gave the Court’s opinion by refusing to consider the motives of the legislature. Instead, he focused on the rights of the purchasers who acted in good faith “unaware of the injurious fraud.” Georgia could not interfere with the federal Constitution which “declares that no state shall pass any … law impairing the obligation of contracts.” Because the “power of the legislature over the lives and fortunes of individuals is expressly restrained,” Georgia could not lawfully interfere with the land sale. This ruling marked the first occasion when a state law was declared invalid as contrary to the Constitution.

Impact. In the relatively short span of one decade Marshall’s court had given the judiciary an important role in the governing of the nation—perhaps its most essential role, as interpreter and guardian of the Constitution. By 1810 the Supreme Court had a real constitutional role and clear judicial mandate.