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Although the Supreme Court is the most important judicial body in the
world in terms of the role it plays within the political order, no one
could have predicted this in 1787 when the Constitution was written.
John Jay, the first chief justice, resigned in 1795 to run for governor
of New York. Nominated as his successor by George Washington was John
Rutledge, who had been named to the initial Court in 1789, but resigned
in 1791, without ever sitting, to go to the more prestigious S. Carolina
Supreme Court. Because Rutledge failed to receive Senate confirmation,
Oliver Ellsworth was nominated as chief justice and confirmed in 1796,
but he too resigned to accept a diplomatic post in France in 1800.
Few decisions of this period were of great significance. The most
important, a 1793 decision upholding federal jurisdiction in a suit
brought by South Carolina land speculators against the state of Georgia,
was met by a storm of protest that resulted in the quick proposal and
ratification of the Eleventh Amendment effectively overruling the
The rise in importance of the Supreme Court began with the 1801
appointment by President John Adams of his secretary of state, John
Marshall, to succeed Ellsworth. The appointment was widely interpreted
as reflecting the desire of the Federalists who had lost the recent
election to retain control of the judicial branch after Thomas Jefferson
and his supporters took over the presidency and Congress, illustrating
the extent to which the institutional mechanisms of checks and balances
can help a repudiated political party. Given the lifetime tenure of
justices, the Supreme Court is almost by definition a "conservative"
force, even if what is "conserved" is the liberal vision of an earlier
Not the least important of Marshall's contributions to the power of the
Supreme Court was his establishment of the notion of a single "opinion
of the Court" and his efforts, usually successful, to discourage the
expression of any dissent from this opinion. Previously, the justices,
like members of English courts, delivered separate opinions, with none
being designated as the view of the institutional Court.
Marshall's opinion in Marbury v. Madison (1803) is famous for
exemplifying the Court's power to invalidate even a congressional
statute thought to violate the Constitution. Even more important,
however, were a number of decisions upholding congressional power or
limiting state power.
McCulloch v. Maryland (1819) upheld the power of Congress to charter the
(2nd) Bank of the United States although the Constitution contains no
language authorizing such an act. This lack of authorization had, when
the 1st Bank of the United States was chartered in 1791, led James
Madison and many others to oppose the act as unconstitutional.
Moreover, the Court invalidated an attempt by Maryland to tax the Bank,
viewing such a tax as an impermissible attack on the powers of the
federal government. McCulloch illustrates the ability of the Supreme
Court to legitimatize the decisions made by other branches of government
by reassuring the public that they are "constitutional."
Although "judicial review" is analyzed most often in terms of the
ability of the Court to invalidate unconstitutional legislation, in fact
the Court rarely finds legislation unconstitutional. Challenges,
especially to federal legislation, usually fail, with the disputed
legislation gaining legitimacy by having passed judicial scrutiny.
The 1810 decision in Fletcher v. Peck, where for the first time the
Court struck down state legislation as constitutionally invalid, was
also more important than Marbury, in practical terms. Over the half
century following Marbury, the combination of the Court's upholding
federal legislation and invalidating state legislation deemed offensive
to one or another constitutional principle -- usually the contract or
commerce clause -- served to bolster the power of the federal government
and to provide reins on state powers.
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