The Supreme Court

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The Supreme Court


  1. The Creation of the National Judiciary

The detailed notes James Madison took at the Philadelphia Convention make it clear that the Framers devoted little time to the writing of or the content of Article III, which created the judicial branch of government.  The Framers believed that a federal judiciary posed little of the threat of tyranny that they feared from the other two branches.


Alexander Hamilton argued in Federalist No. 78 that the judiciary would be the “least dangerous branch of government.” Anti-Federalists, however, did not agree with Hamilton.  They particularly objected to a judiciary whose members had life tenure and the ability to interpret what was to be “the supreme law of the land,” a phrase that Anti Federalists feared would give the Supreme Court too much power.


The Framers also debated the need for any federal courts below the level of the Supreme Court.  Some argued in favor of deciding all cases in state courts, with only appeals going before the Supreme Court.  Others argued for a system of federal courts.  A compromise left the final choice to Congress, and Article III, section 1, begins simply by vesting, “The Judicial Power of the United States…in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and established”


  1. Judicial Review: Definition

The Power of the Supreme Court to review acts of other branches of government.

Definition: First decision by the Supreme Court to declare a law unconstitutional (1803). Here is a summary:

  • At the very end of his term, President John Adams had made many federal appointments, including William Marbury as justice of the peace in the District of Columbia.
  • Thomas Jefferson, the new president, refused to recognize the appointment of Marbury.
  • The normal practice of making such appointments was to deliver a “commission,” or notice, of appointment. This was normally done by the Secretary of State. Jefferson’s Secretary of State at the time was James Madison.
  • At the direction of Jefferson, Madison refused to deliver Marbury’s commission. Marbury sued Madison, and the Supreme Court took the case.
  • Chief Justice John Marshall wrote that the Judiciary Act of 1789, which spelled out the practice of delivering such commissions for judges and justices of the peace, was unconstitutional because it gave the Supreme Court authority that was denied it by Article III of the Constitution. Thus, the Supreme Court said, the Judiciary Act of 1789 was illegal and not to be followed.

This was the first time the Supreme Court struck down a law because it was unconstitutional. It was the beginning of the practice of “judicial review.”

  • The Types of Cases the Supreme Court adheres to:
    1. All cases arising under the Constitution and laws or treaties of the United States
    2. All cases of admiralty or maritime jurisdiction
    3. Cases in which the United States is a party
    4. Controversies between a state and citizens of another state
    5. Controversies between two or more states
    6. Controversies between citizens of different states
    7. Controversies between citizens of the same states claiming lands under grants in different states
    8. Controversies between a state, or the citizens thereof, and foreign states or citizens thereof
    9. All cases affecting ambassadors or other public ministers