Jonathan Salem Baskin

Questioning Authority

Today, an ultimate arbiter joined the debate.

It reads almost like an afterthought: The “judicial power of the United States, shall be vested in one supreme Court,” read the Constitution, adding that Congress had the power to figure out what it meant (along with establishing however many “lesser” courts it deemed necessary). The nation’s first leaders were so worried about what those words meant that they dedicated half of the Bill of Rights to cautions and qualifiers on judicial power. Their suspicions were a product of history, since courts had often been used as tools by tyrants and entrenched powers to quash the rights of individuals. The United States had been founded on preserving those very rights. It’s not surprising that the first piece of legislation considered by the first meeting of the newly-formed Congress was the Judiciary Act, which defined the structure and operation of the Supreme Court, and divided the U.S. into 13 regions of courts through which judges would travel regular circuits (nascent Supreme Courts would also make the trips and convene around the country).

But everyone was still somewhat ambivalent when President Washington signed the Act into law on this day in 1789, after which he nominated the first justices. The Court didn’t even docket its first case for two years (which was settled before it was heard), and then its next two cases — one each year in 1790 and 1791 — were tried on questions of federal vs. state powers (Chisholm v. Georgia was found in favor of a plaintiff who wanted the Court to force Georgia to pay a debt from the Revolutionary War, and Congress quickly passed the Eleventh Amendment to nullify that authority). The two dozen or so cases it heard through the mid-1820s were similarly concerned with deciding which institutions possessed what powers (or resolving debt issues arising from the Revolution, and then the War of 1812). It really didn’t get busy until well after the Civil War, as the complexities of life in a thriving and expanding nation required more frequent interpretations of the same old question: Who has the authority to do what?

So an institution invented from a single sentence in a 200+ year-old document is tasked with parsing and interpreting other sentences in said document. It’s not unreasonable that we still question that authority.