No single person created the U.S. Supreme Court. The framers established it on paper at the Constitutional Convention in 1787, the First Congress built it into a working institution through the Judiciary Act of 1789, and President George Washington brought it to life by nominating its first six justices. Each step required a different branch of the new government, which is exactly what the framers intended.
The Framers and Article III
The Court’s legal foundation is a single sentence in Article III, Section 1 of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court.”1Constitution Annotated. U.S. Constitution – Article III That line made the Court a permanent branch of government that Congress cannot abolish. Almost everything else was left open. Article III says nothing about how many justices should serve, what qualifications they need, or how the Court should organize its work.
Delegates at the 1787 convention agreed on the need for an independent federal judiciary to settle disputes between states, check the other branches, and keep the interpretation of national law uniform. They disagreed on the details. Some wanted Congress to appoint judges; others favored the executive. The compromise was presidential nomination with Senate confirmation, splitting the power so neither branch controlled the judiciary alone. The framers also insulated judges from political pressure with lifetime tenure during “good Behaviour” and a guarantee that their pay could not be reduced while they served.2Congress.gov. Article III Section 1
The Judiciary Act of 1789
Article III created the idea of a Supreme Court. The Judiciary Act of 1789 made it real. The First Congress had to turn a one-sentence constitutional provision into a functioning court system, and Senator Oliver Ellsworth of Connecticut led the effort. The Senate named him chairman of a ten-member drafting committee on April 7, 1789, the day after it first achieved a quorum. Ellsworth, who later became the third Chief Justice, was the act’s principal author.3United States Senate. Senator Ellsworth’s Judiciary Act
The act set the Court’s initial size at six: one Chief Justice and five Associate Justices.4Congress.gov. Legislative Control over the Size of the Supreme Court It divided the country into thirteen judicial districts and grouped them into three regional circuits, building a tiered federal court structure to funnel cases upward. Section 25 gave the Supreme Court authority to review state court decisions involving federal law, treaties, or constitutional questions, which ensured federal law would be read the same way in every state. In one piece of legislation, Congress supplied what the Constitution left out: a defined bench, a court hierarchy, and jurisdictional boundaries.
Washington and the First Justices
With the structure in place, George Washington filled the seats. He nominated all six original justices: John Jay as Chief Justice, along with John Rutledge, William Cushing, James Wilson, John Blair, and Robert Harrison. The Senate confirmed all six.5United States Senate. First Supreme Court Nominations Confirmed Harrison declined to serve because of poor health, and Washington later replaced him with James Iredell.
Washington picked justices from different states to give the new Court geographic legitimacy. All twelve of his Supreme Court appointments during his presidency came from the Federalist Party.6Constitution Annotated. Appointments of Justices to the Supreme Court The Constitution imposes no qualifications for the job. There is no age requirement, no citizenship requirement, and no rule that a justice must be a lawyer or a law school graduate.7Supreme Court of the United States. Frequently Asked Questions – General Information Every justice has had legal training in practice, but that tradition has no constitutional basis.
The Court held its first session on February 2, 1790, at the Royal Exchange building in New York City.8Supreme Court of the United States. Meeting Sites of the Court That session was largely organizational and produced no rulings, but it marked the point at which the judiciary became a working branch of government alongside Congress and the presidency.
How the Number of Justices Changed
The Constitution gives Congress the power to set the Court’s size, and Congress has used it repeatedly. The six-justice bench did not last long. In 1801, Congress reduced the number to five, though no vacancy occurred before the law was repealed and the count returned to six. During the Civil War era the Court expanded to its largest size, ten. In 1866, Congress shrank it to seven, and in 1869 a new act set the number at nine.4Congress.gov. Legislative Control over the Size of the Supreme Court That number has held ever since.
These changes were rarely about efficiency. Congress often adjusted the Court’s size to influence which president would get to fill vacancies or to shift its ideological balance. The number changed six times before settling at nine in 1869.9Supreme Court of the United States. The Court as an Institution Nothing in the Constitution prevents Congress from changing it again.
The Power the Constitution Left Out
The Constitution created the Court but never explicitly gave it the authority that defines it today: the power to strike down laws as unconstitutional. That power, judicial review, was established by the Court itself in the 1803 case Marbury v. Madison. Chief Justice John Marshall’s opinion declared that “a Law repugnant to the Constitution is void” and held that the courts have the duty to say so.10National Archives. Marbury v. Madison
The case grew out of a minor dispute over a judicial appointment, but Marshall used it to establish a sweeping principle. He ruled that a portion of the Judiciary Act of 1789 itself was unconstitutional because it tried to expand the Court’s original jurisdiction beyond what Article III allowed.11Justia. Power to Issue Writs – The Act of 1789 The very law that organized the Court became the first federal statute the Court struck down. The framers built the Court’s structure, Congress gave it tools, and Washington staffed it. The Court itself, through Marshall’s opinion, claimed the role that makes it the institution people recognize today.