The Constitution’s third article provides the basis for the judicial branch of the federal government. Under the Articles of Confederation, there had been no national judiciary. State courts administered the laws (which were mostly state laws anyway), while disputes between states were supposed to be adjudicated by Congress itself. That arrangement had not worked out effectively, and at the Constitutional Convention both the Virginia and New Jersey Plans had called for the creation of a national judiciary. While achieving this goal, the Convention spent much more time defining the structure and powers of the legislative and executive branches, which perhaps explains both the placement and relative brevity of Article III.
The article does not attempt to determine the shape of the federal judiciary in any detail. It mandates that there shall be a Supreme Court, though it does not say how many justices it should have. This is left to the discretion of Congress, as is the question of whether there should be lower levels of federal courts, with the stipulation that justices and judges will hold office during good behavior. Article III also defines the Supreme Court’s jurisdiction in both its original and appellate dimensions. Other parts of the Constitution also affected the judicial branch. Article II provided that the President would select federal judges with the advice and consent of the Senate, and Article VI’s “supremacy clause” declared the Constitution, laws made pursuant to it, and treaties to be the law of the land, taking precedence over state laws in the event of conflict. Nowhere, however, did the Constitution specifically state that the Supreme Court would have the power to overturn federal and state laws that might be held to conflict with Constitution.
As with other parts of the Constitution, many questions remained to be answered when the new framework of government went into effect in 1789. Some issues were settled by the Federal Judiciary Act of that year, one of the most important measures passed by the first Congress. This measure set the size of the Supreme Court at six. (The size varied over the next seventy years but has remained at nine since 1869.) The Judiciary Act also established a system of lower federal court: district courts with their own presidentially-appointed judges (at least one in every state) and an intermediate level of circuit courts, originally composed of district court judges and Supreme Court justices. (“Riding circuit” would be the most taxing part of the job for nineteenth-century justices.) The Circuit Courts only began to acquire their own judges in 1869.
Other important precedents were set by the Court itself. Early on it responded negatively to President Washington’s request for an advisory opinion. Ever since, the Court has heard and decided only actual cases, not hypothetical ones. Most importantly perhaps, it established, in 1803 under Chief Justice John Marshall’s leadership, the power to hold unconstitutional an act of Congress, extending this power to state laws in1810. Though used sparingly at first, judicial review became the Supreme Court’s most important power with regard to the other branches of the federal government and the states and helped to make the Court the most authoritative arbitrator of constitutionality in American government. While the Court’s interpretations have sometimes been—and doubtless will continue to be—controversial, they have played an integral part in establishing the rule of law and make good on Alexander Hamilton’s prediction that the judicial would be “the least dangerous branch” of American government.
William C. Lowe, PhD
Dean and Professor of History
The University of Arizona Global Campus
published September 2009