The Supreme Court:
The First Decade
The Federal Court of Appeals • The Judiciary Act of 1789 •
The Process Act • The Jay Court Convenes • Separation of
Powers • Suing States in Federal Courts • Chisholm v.
Georgia • The Eleventh Amendment • The Debt Cases •
Judicial Review • The Ellsworth Tenure • Circuit Duties •
Conclusion • For Further Reading
ARTICLE III OF the Constitution vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress shall establish. The Judiciary Act of 1789 set out the basic outline of a federal court system, but just as Washington had to fashion the executive branch, so the new courts and justices had to evolve procedures for the judicial arm of the government. Some of the precedents set during this period would last for decades; others would vanish within a few years.
In deciding to create a judicial branch as part of the new constitutional government, the Framers recognized one of the major weaknesses of the Confederation, apparent not only in the absence of a federal court system, but also in the confused record of the only national court created under the Articles. As early as November 1775, George Washington recommended that the Continental Congress authorize a prize court to dispose of captured British cargoes and vessels. Instead of establishing a federal court, however, Congress suggested that each state set up a court, with a right of appeal to the Congress itself. The states accordingly created prize courts, but jealous of their own authority, they generally limited what appeals could be taken to Congress. New Hampshire, for example, permitted appeals only if the capturing ship had been an armed vessel fitted out by order of Congress; a few years later, it restricted appeals even further,