358 CHAPTER 12|THE COURTS
The main disagreements about the judiciary had to do with how independent
the courts should be vis-à-vis the other branches of government and how much
power to give the courts. Some of the framers feared a tyrannical Congress and
wanted to create judicial and executive branches that could check this power. Oth-
ers argued for making the executive and judicial branches more closely related so
they would be better able to balance Congress. A central debate was whether to
give the judiciary some “revisionary power” over Congress, similar to the presi-
dent’s veto power. This idea of judicial review would have given the Supreme Court
the power to strike down laws passed by Congress that violated the Constitution.
The framers could not agree on judicial review, so the Constitution remained
silent on the matter. As the power of judicial review has evolved, it has become a
central part of the system of checks and balances (see Chapter 2).
Many details about the Supreme Court were left up to Congress, including its
size, the time and place it would meet, and its internal organization. These details,
as well as the system of lower federal courts, were outlined in the Judiciary Act
of 1789. This law set the number of justices at six (one chief justice and fi ve associ-
ates). The number of justices gradually increased to 10 by the end of the Civil War
and was then restricted to seven under Reconstruction policies. The number was
set at nine in 1869, where it has remained since.^2
The 1789 Act also created a system of federal courts, which included thirteen
district courts and three circuit courts—the intermediate-level courts that
heard appeals from the district courts. The district courts each had one judge; the
circuits comprised two Supreme Court justices and one district judge. Today, sep-
arate judges are appointed to fi ll the circuit courts (what we call “appeals courts”).
Furthermore, the act refi ned the jurisdiction of the federal courts—the limits
within which they could exercise their authority. One controversial provision was
Section 25, which expanded the Court’s appellate jurisdiction (cases heard on
appeal from lower courts) to include state supreme court cases involving confl icts
between state law and federal law or treaties or the U.S. Constitution.
The Supreme Court had a rough start. Indeed, it seemed determined to prove
Alexander Hamilton right that it was the weakest branch. Of the six original jus-
tices appointed by George Washington, one declined to serve and another never
showed up for a formal session. The Court’s fi rst sessions lasted only a few days
because it did not have much business. In fact, the Court did not decide a single
case in 1791 or 1792. When Justice Rutledge resigned in 1791 to take a state court
position, two potential appointees turned down the job in order to keep their posi-
tions in their state legislatures! Such career decisions would be unimaginable
today, when serving on the Supreme Court is considered the pinnacle of a legal
career.^3Judicial Review and Marbury v. Madison
The Court started to gain more power when John Marshall was appointed chief
justice in 1801. Marshall single-handedly transformed the Court into an equal
partner in the system of checks and balances. The most important step was the
decision Marbury v. Madison (1803), which gave the Supreme Court the power of
judicial review. As noted, the framers were split on the wisdom of giving the
Court the power to strike down laws passed by Congress; therefore the Constitu-
tion does not explicitly address the issue. However, historians have established
that a majority of the framers, including the most infl uential ones, favored judicialJudiciary Act of 1789 The law
in which Congress laid out the
organization of the federal judiciary.
The law refi ned and clarifi ed federal
court jurisdiction and set the origi-
nal number of justices at six. It also
created the Offi ce of the Attorney
General and established the lower
federal courts.
district courts Lower-level trial
courts of the federal judicial system
that handle most U.S. federal cases.
appellate jurisdiction The
authority of a court to hear appeals
from lower courts and change or
uphold the decision.
judicial review The Supreme
Court’s power to strike down a law
or executive branch action that it
fi nds unconstitutional.