Judiciary Act

The Judiciary Act created a federal court system independent of the legislative and executive branches of the U.S. government. Beyond filling a practical need, the act created the third branch of the American three-branch system and began to apportion power to the judiciary, providing it with a role in the day-to-day conducting of the national government.

Summary of Event

The Constitution of the United States created the basic framework for a national government. It remained for the First Congress, meeting in New York in April, 1789, to implement the document. Few congresses have been of greater importance than the first. Virtually every act set a precedent. The vagueness of the Constitution added to the significance of congressional activity. The document contained many obscure clauses and unanswered questions regarding the powers and responsibilities of the various branches of the federal government. These so-called Silences of the Constitution left Congress with much discretionary power to deal with the problem of judicial authority. [kw]Judiciary Act (Sept. 24, 1789)
[kw]Act, Judiciary (Sept. 24, 1789)
Federal courts, U.S.
Judiciary Act (1789)
[g]United States;Sept. 24, 1789: Judiciary Act[2850]
[c]Government and politics;Sept. 24, 1789: Judiciary Act[2850]
[c]Laws, acts, and legal history;Sept. 24, 1789: Judiciary Act[2850]
Ellsworth, Oliver
Paterson, William
Strong, Caleb
Jay, John
Washington, George
[p]Washington, George;Judiciary Acts

The Constitution, in Article III, sections 1 and 2, provided for an independent judiciary to consist of a Supreme Court and inferior courts. The general jurisdiction of the court system was defined in section 2. The Constitution did not deal with the question of judicial review—the power of the federal courts to determine the constitutionality of federal or state legislation. Nor did the Constitution address itself to the responsibility of the federal courts to interpret the meaning of the Constitution.

Most members of the Philadelphia Convention apparently agreed that the judiciary should possess the power to determine the constitutionality of legislation. The convention’s members did not intend that the courts should interpret the document. However, neither of these issues was settled definitively, and much was left to the discretion of Congress. Constitutional Convention (1787) Convention apparently agreed that the judiciary should possess the power to determine the constitutionality of legislation. The convention’s members did not intend that the courts should interpret the document. However, neither of these issues was settled definitively, and much was left to the discretion of Congress.

Work on a federal judicial system began in April, 1789, when a Senate committee was formed and directed to bring in a bill. Its fundamental significance to the new nation was evident. Ten senators from ten different states were chosen, ensuring a committee broadly representative of the new nation’s divergent points of view on a federal judiciary. The leading role, however, was played by the Federalist senators Oliver Ellsworth of Connecticut, Caleb Strong of Massachusetts, and William Paterson of New Jersey. To ensure a workable plan, the committee conferred widely with other senators, members of the House of Representatives, and various lawyers and judges.

The principal struggle was over the need for a level of lower federal courts. Antifederalists Antifederalist opponents of a strong central government argued for the use of the state courts as the first instance in federal questions. Federalist Party Federalists contended that lower national courts were necessary in order to safeguard the contract and property rights of merchants engaged in interstate commerce and foreign nationals doing business in the United States.

The First Congress was uncertain as to the proper relationship between the federal courts that they were to create and the already functioning state judicial systems. Although most members of the Congress had been ardent supporters of the Constitution, and therefore nationalist in sentiment, they were fearful that too powerful a federal judiciary would invade the rights of the states. The Judiciary Act of 1789 was a compromise between those who desired a truly national court system and those fearful for the integrity of the state courts. It passed the Senate by a vote of 14 to 6 and the House of Representatives by 29 to 22. President George Washington signed it into law on September 24, 1789.

The Judiciary Act created a Supreme Court, fixing its membership at six justices—a chief justice and five associates. It established a middle tier of three circuit courts, each comprising two Supreme Court justices, who rode circuit, and a district judge from within the circuit. The lowest tier of the federal system was the thirteen district courts, one in each state, with original jurisdiction in both criminal and civil cases. District judges were to be chosen from among residents of the state in which they served. The act also created the office of United States attorney general and provided U.S. attorneys for each federal judicial district. The federal courts were given marshals, serving four-year terms, to attend court, execute precepts directed to them under the authority of the United States, and take custody of prisoners.

The state courts were allowed a limited concurrent jurisdiction with the national courts. Cases arising under the Constitution, laws, and treaties of the United States were first heard in the state courts. The nationalists achieved a significant victory in providing, in Section 25 of the Judiciary Act, for appeals from the state courts to federal courts in all instances where it could be shown that the state courts had failed to give full recognition to the U.S. Constitution, federal laws, or treaties to which the United States was a party—these three constituting the supreme law of the land, according to the Constitution. This appellate jurisdiction implied the power of the federal courts to review the constitutionality of state and federal legislation. In later years, a great controversy arose over the constitutionality of Section 25 of the Judiciary Act.


The influence and prestige of the Supreme Court grew slowly during the first decade of its existence. Precedents were established that defined the powers of the Court and its relationship with other branches of the government. In 1793, President Washington requested that the Court advise him concerning certain questions of international law. The Court under Chief Justice John Jay declined to involve itself in extrajudicial or nonjudicial matters. This firmly established the separate and independent existence of the Supreme Court.

In certain decisions, the Supreme Court did assume the power of judicial review. In Ware v. Hylton (1796)[Ware versus Hylton]
Ware v. Hylton (1796), the Supreme Court invalidated a Virginia statute sequestering the pre-Revolutionary War debts of British creditors. These debts were guaranteed by the Paris, Treaty of (1783) Treaty of Paris of 1783. According to the Constitution, treaties were part of the law of the land and therefore superior to state laws. In Hylton v. United States (1796)[Hylton versus United States]
Hylton v. United States (1796), upholding a Virginia law taxing carriages, the Court not only applied the power of judicial review but also, in deciding whether this tax was direct or indirect, interpreted the Constitution. The lower federal courts were also involved in reviewing state laws.

The decision in the case of Ware v. Hylton aroused considerable opposition to the Supreme Court from the Republican Party Republican Party, which accused the Court of being pro-British. Even more serious opposition was engendered by the decision in Chisholm v. Georgia (1793)[Chisholm versus Georgia]
Chisholm v. Georgia (1793). In that case, two citizens of South Carolina, as agents for a British subject, brought suit in the Supreme Court for the recovery of confiscated property. The Court found in favor of the British creditor. Opponents of this decision immediately launched a campaign to curtail the power of the Supreme Court. The result was the Eleventh Amendment (U.S. Constitution) Eleventh Amendment, ratified in 1798, which denied to the Court the authority to decide cases “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” States could not be brought into federal courts to be sued without their consent.

In spite of the Eleventh Amendment, the Supreme Court was firmly established by 1800. The Supreme Court, under the dynamic leadership of Chief Justice Marshall, John John Marshall of Virginia, survived an attack by the Republican Party on its independence during the Thomas Jefferson administration and definitively asserted its right of judicial review in Marbury v. Madison (1803)[Marbury versus Madison]
Marbury v. Madison (1803). The Court became the most effective force for nationalism in the federal government.

Further Reading

  • Brown, William G. The Life of Oliver Ellsworth. 1905. Reprint. New York: Da Capo Press, 1970. The biography of a powerful Federalist leader whose judicial experience in Connecticut helped prepare him to draft the Judiciary Act of 1789.
  • Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia: University of South Carolina Press, 1995. A history of the court during the eighteenth century, describing the court’s creation, its members, and its decisions. Chapter 2 focuses on the Judiciary Act of 1789.
  • Corwin, Edward S. The Doctrine of Judicial Review. Princeton, N.J.: Princeton University Press, 1914. A classic study, by one of the foremost students of the Constitution, of the intent of the Founding Fathers regarding judicial review.
  • Goebel, Julius, Jr. Antecedents and Beginnings to 1801. Vol. 1 in History of the Supreme Court of the United States. New York: Macmillan, 1971. Chapter 11 offers an exhaustive scholarly examination of the act’s evolution.
  • McCloskey, Robert G. The American Supreme Court. 4th ed., revised by Sanford Levinson. Chicago: University of Chicago Press, 2005. A chronological history of the Supreme Court, with information on its creation and the Judiciary Act of 1789.
  • Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992. Nine substantial essays offering a fresh scholarly appraisal of the act.
  • Ritz, Wilfred. Rewriting the History of the Judiciary Act of 1789. Norman: University of Oklahoma Press, 1990. A major study of the act and its significance in its political context, challenging the work of Warren and Goebel on many points.
  • Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993. An excellent narrative history of the Supreme Court, clarifying complex legal issues with engaging style.
  • Warren, Charles. The Supreme Court in United States History. 2 vols. Boston: Little, Brown, 1932. Revised edition of the most influential scholarly work on the evolution of the Supreme Court.

Declaration of Independence

Ratification of the Articles of Confederation

Ordinance of 1785

Northwest Ordinance

U.S. Constitution Is Adopted

Washington’s Inauguration

First U.S. Political Parties

U.S. Bill of Rights Is Ratified

Alien and Sedition Acts

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Judiciary Act (1789)