Bill passed by Congress establishing a three-tier system of federal courts.

The Constitution,Constitution, U.S. written during the summer of 1787 and ratified in 1788, established a new government that started working in April, 1789, when the newly formed Congress began meeting. President George Washington was sworn into office on April 30. At that point two of the three branches of the new government had been formed, but the judicial branch had yet to be created.

During the Constitutional Convention, most of the debate revolved around the executive and legislative branches. There was near complete agreement on the need for a federal judiciary, although there was considerable disagreement about what exactly the judiciary would do. That is, the supporters of both the Virginia and New Jersey plans during the Constitutional Convention favored the creation of a federal judiciary something that did not exist under the previous governing document, the Articles of Confederation. The proposals for a federal judiciary were quite similar. Both supported the creation of a supreme court as well as the formation of inferior tribunals. The inferior courts would be trial courts, and the highest court would primarily be a court of appeals but would also hear some cases in the first instance. When the Committee on Detail, a small group formed by the men convened in Philadelphia, reported a draft to the full assembly on August 8, 1787, the section in the proposed Constitution regarding the judiciary was nearly identical to final product of the Convention, which was signed on September 17, 1787.

The new Constitution treated the judicial branch of government in Article III, which contains less detail than Articles I and II, which, respectively, lay out the structures and powers of Congress and the president. Article III, section 1, states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers of the Constitution did not believe it was prudent or even possible to determine the specifics of the structure of the federal judiciary. They left the exact structure to be determined by the legislative branch.

Moreover, Article III, section 2, states that “The judicial Power shall extend to all Cases…arising under this Constitution, [and] the laws of the United States” as well as matters specifically stated that were best suited for the federal judiciary.

Thus the Framers left it to Congress to determine the specifics, and Congress did so with the Judiciary Act of 1789. The Judiciary Act was the first bill introduced in the Senate and consumed much of the Senate’s time during the summer of 1789. It had three principal authors: Oliver EllsworthEllsworth, Oliver of Connecticut, a member of the Constitutional Convention and later a chief justice; William PatersonPaterson, William of New Jersey, previously the attorney general in New Jersey, a participant in the Constitutional Convention, and later an associate justice; and Caleb StrongStrong, Caleb of Massachusetts, who also attended the Constitutional Convention but was not an active participant.

The Judiciary Act, which was officially titled, “An Act to Establish the Federal Courts of the United States,” was signed by President Washington on September 24, 1789. The most significant aspects of the act were its establishment of a three-tier system of courts, establishing district courts along state boundaries and legislating the jurisdictions, both original and appellate, of the various courts.

The highest tier of the newly formed judicial system was the Supreme CourtSupreme Court, U.S., which, according to the act, would “consist of a chief justice and five associate justices.” The act also indicated that four justices needed to be present for the Court to operate and that the Court would have two sessions each year in the seat of the government.

The lowest tier of the federal judiciary would be the district courtsDistrict courts. The act set the precedent that jurisdiction for district courts would follow state boundaries. It established thirteen district courts, one for each of the eleven states that had ratified the Constitution at that point and for the districts of Maine and Kentucky, which were not yet regarded as states. The arrangement of the district courts was a compromise between Federalists and Antifederalists. Some Antifederalists wanted state courts to adjudicate violations of federal law, and some Federalists wanted the boundary lines for district courts to be distinct from state boundaries. The judges appointed to each district court would hear criminal cases involving admiralty and maritime crimes as well as other cases involving federal law. All criminal cases would go before a jury. The district courts would also hear minor civil cases involving the federal government. These courts were to meet four times each year.

The other tier created by the act was the circuit courts of appealsCircuit courts of appeals. The act created three circuits: eastern, middle, and southern. The most remarkable characteristic of these courts to the modern observer is that there were no separate corps of judges for these courts. The judges for the circuit courts of appeals would consist of two Supreme Court justices along with a district court judge from within the territory of each circuit court of appeals. These courts were to be both trial and appellate courts. These courts would hold trials in cases of diversity of citizenship in civil cases as well in cases involving major federal crimes. These courts also heard appeals from the district courts. The act prevented district court judges from hearing appeals in cases in which they had already participated. Supreme Court justices were not prevented from hearing cases in their capacities both as circuit court of appeals judges and as justices of the Supreme Court. However, most justices removed themselves from any cases in which they had previously participated. Those justices appointed during the early years of the Court often served mostly as a circuit court judge because few cases made it to the high court.

After the establishment of the courts, the most significant aspect of the Judiciary Act is the assignation of original and appellate jurisdiction for the various courts. In section 13, the act restated the original jurisdiction for the Supreme Court as outlined in Article III of the Constitution. The act also dictated what kind of appellate jurisdiction the Court would have. Section 13 further stated that the Court could issue writs of mandamus “in cases warranted by the principle and usages of law, to any courts appointed, or persons holding office under the authority of the United States.” Such a writ would in effect force a higher-level official to act in a particular manner.

Regarding the jurisdiction of the Court, section 25 of the act indicated that the Court could hear appeals from the highest court in each state on matters of law alone. This section truly established the Court as the highest judicial authority in the new United States.

The most famous of the Court cases involving the Judiciary Act of 1789 was Marbury v. Madison[case]Marbury v. Madison[Marbury v. Madison] (1803). This decision set the precedent for judicial review because the Court ruled on the constitutionality of a statute. William Marbury, who had been appointed by President John Adams to be a justice of the peace in the District of Columbia, asked the Court to deliver a writ of mandamus forcing Madison, who was Jefferson’s secretary of state to deliver his commission to him. Marbury asked for such an action by the Court because the Judiciary Act of 1789 gave the Court original jurisdiction regarding writs of mandamus. Chief Justice John Marshall declared in his decision that section 13 of the Judiciary Act of 1789 was unconstitutional because Article III of the Constitution indicated the specific kinds of cases in which the Court would have original jurisdiction, and issuing writs of mandamus was not one of those.

Another significant case involving the Judiciary Act of 1789 is Martin v. Hunter’s Lessee[case]Martin v. Hunter’s Lessee[Martin v. Hunter’s Lessee] (1816). In Fairfax’s Devisee v. Hunter’s Lessee[case]Fairfax’s Devisee v. Hunter’s Lessee[Fairfax’s Devisee v. Hunter’s Lessee] (1813), the Court had overturned the decision of Virginia’s highest court. The Virginia court of appeals refused to adhere to the Supreme Court’s decision and declared that “the appellate power of the Supreme Court does not extend to this court.” The Virginia court further stated that Judiciary Act of 1789;section 25section 25 of the Judiciary Act of 1789 was not constitutional. The Supreme Court in Martin affirmed the constitutionality of this appellate jurisdiction. In the majority opinion, Justice Joseph Story affirmed the constitutionality of section 25, arguing that the Congress, except for specified cases, was given latitude in determining jurisdiction of the federal courts.

In Cohens v. Virginia[case]Cohens v. Virginia[Cohens v. Virginia] (1821), the Court reaffirmed the constitutionality of section 25 of the Judiciary Act of 1789. This case is significant because Chief Justice John Marshall had not participated in Fairfax’s Devisee or Martin because he and his brother had contracted to purchase some of the disputed land. In Cohen, Marshall was part of the majority in affirming the Court’s jurisdiction in reviewing state supreme court decisions.

The Judiciary Act of 1789 is significant because it established the federal judiciary, and, although portions of the act have been amended, many of the precedents established have continued to this day.

• As good a starting point as any are two comprehensive but concise histories of the Supreme Court: Robert Langran’s The Supreme Court: A Concise History (New York: P. Lang, 2004) and Westel Woodbury Willoughby’s The Supreme Court of the United States: Its History and Influence in Our Constitutional System (Union, N.J.: Lawbook Exchange, 2001). From there, readers may wish to probe more deeply into the Court’s history in The Documentary History of the Supreme Court of the United States, 1789-1800 (New York: Columbia University Press, 1985), which contains the complete text of the Judiciary Act of 1789. Any serious investigation of this topic should consult the only recent book devoted to the act, Wilfred Ritz’s Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (Norman: University of Oklahoma Press, 1990). Robert McCloskey’s The American Supreme Court, revised by Sanford Levinson (4th ed., Chicago: University of Chicago Press, 2005), devotes a chapter to the early years of the Court. Congressional Quarterly’s Guide to the United States Supreme Court, edited by David G. Savage (4th ed., Washington, D.C.: Congressional Quarterly, 2004) includes essays on the formation of the federal judiciary.

Circuit courts of appeals

Cohens v. Virginia

Constitutional Convention

Ellsworth, Oliver

Judicial Improvements and Access to Justice Act

Judiciary Acts of 1801-1925

Lower federal courts

Madison, James

Marbury v. Madison

Marshall, John

Martin v. Hunter’s Lessee