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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 decision.

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 party.

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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