It’s impossible to truly understand our nation’s history without an understanding of the history of the Supreme Court and its role in shaping public policy in every regard. I am licensed to present cases to the Supreme Court however I have never had a case that warranted being presented to the Supreme Court. I am however fascinated with the evolution of this small, yet mighty branch of the government.
The power the Supreme Court wields today is very different than when it first started. In fact, there is literally just one sentence in the Constitution that vaguely references what the Supreme Court shall do. Article 3 of the Constitution states: “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 language is vague since at its inception the Supreme Court’s role was being made up along the way. In 1787 most of the attention was on the legislature, which was based on the Parliamentary system, which is of course where we got our traditions based on the House of Lords. By the time it was established in 1789 and, in its earliest days, the Supreme Court was considered the least dangerous brand of the federal government. As a uniquely American idea, the idea of a co-equal independent body was not yet fleshed out.
The Supreme Court didn’t really start to come into its true power until the fourth Chief Justice, John Marshall, took office. During the tenures of the first, second and third Chief Justices, very few cases were heard by the Supreme Court. In fact, the first Chief Justice, John Jay, appointed by President George Washington stepped down from his position to run for Governor of New York because he was bored.
Today, it’s impossible to imagine what the Supreme Court might look like if it weren’t for Chief Justice Marshall. Everything we think of regarding the way the court works and what the is based on the Marshall Court and the way they established its authority. Out of the Chief Justice John Marshall court came the powers that the Supreme Court wields today of profoundly shaping public policy.
I personally want to thank Justice Marshall for eliminating the tradition of lawyers wearing wigs in court. The three justices prior to him still required the wigs as do Canada and England to this day. Another change that Marshall made was wearing a black robe like the rest of the Justices. First Chief Justice John Jay wore a bright scarlet robe as did the two succeeding Justices. Justice Marshall established equality among the Justices by wearing a black robe.
The first major decision that came out of the Marshall Court was Marbury vs. Madison.
This decision established the concept of what represents judicial review. Judicial review is the idea that the Supreme Court is the final say on whether an act of congress violates the constitution. Other Marshall decisions of major importance include:
Fletcher v Peck
Marshall v Hunter’s
Mcullogh v Maryland
Givens v Ogden
Behrens v Baltimore
You can review all of Chief Justice Marshall’s decisions here: List of United States Supreme Court cases by the Marshall Court
John Marshall served as Chief Justice from 1801 – 1835. Another interesting fact about the changing nature of the Supreme Court is that the number of Justices on the Supreme Court have fluctuated. In the beginning there were 6 including the Chief Justice, but there has been as many as 10. Today, there are 9 which has been the case since 1869. And Congress does have the power to increase or decrease the number.
I’m often asked about the qualifications for being nominated for Supreme Court Justice. Originally, those responsible for framing the first federal government were given various positions by President George Washington. Everyone in the early days of our country’s federal government had an important role as founding fathers of our country and our Constitution. Today, there are no ‘formal’ qualifications to be a Supreme Court nominee. Though the one thing all Justices have in common is that they are lawyers. However, not all of them went to formal law school. The only requirement is that they are nominated by the sitting President. They then must be voted in by the Senate.
If you would like to know more about the Supreme Court’s landmark decisions regarding discrimination leading up to the Civil War and beyond, up to our current times, I cover that ground in my recent podcast, Closing Arguments. Be sure to check out our podcast on your favorite podcasting platform for more intriguing law-based discussions!