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Making Civics Real Workshop 1: Freedom of Religion  
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Teaching About the United States Supreme Court
by Sarah E. Drake and Thomas S. Vontz

The Supreme Court is one of the most important institutions in the United States. Thus, social studies teachers should emphasize the significance of the Court in our nation's history. This ERIC Digest highlights the origin and foundations of the Supreme Court, discusses the changing role of the Supreme Court in the United States, and recommends World Wide Web resources helpful in teaching and learning about the Supreme Court.

Constitutional and Statutory Foundations of the Supreme Court
The majority of the men who met in Philadelphia during the summer of 1787 agreed on the need to create a more powerful central government. Concurrently, however, many of the delegates feared the abusive power a new national government could wield. During the ratification struggle, James Madison, in "Federalist 51," emphasized the necessity of providing for "auxiliary precautions" to limit governmental power. The judicial branch was designed in part to exercise such precautions on the legislative and executive branches. At the same time, the framers placed checks on the judiciary in order to ensure that no single branch would dominate the others.

The judiciary was the least discussed branch of government at the Constitutional Convention, and Alexander Hamilton in "Federalist 78" later referred to the Supreme Court as the "least dangerous" branch of the proposed national government because it possessed neither the power of "the purse" (legislative power) nor that of "the sword" (executive power). The debates surrounding the Court's creation reveal a broad consensus that the federal judiciary shall have jurisdiction in all cases pertaining to the Constitution, federal statutes, and treaties. The delegates provided for the Supreme Court to have original jurisdiction only in cases involving "Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." In all other cases under its authority, the Court was granted "appellate jurisdiction" (Article III, Section 2, Clause 2 of the Constitution). In addition, the convention delegates agreed that Congress would be empowered to establish inferior courts (Casto 1995, 14).

The Philadelphia delegates granted the President power to make judicial appointments and required the Senate's approval for such appointments. Supreme Court justices were to be appointed for lifetime tenure "during good behavior" to create an independent judiciary that would act to preserve a limited government and the rule of law.

After ratification of the Constitution and subsequent implementation of the new government, Congress passed the Judiciary Act of 1789 to establish and organize the federal judiciary. This federal statute established two lower levels of federal courts: 13 federal district courts at the lowest level and three circuit courts at the next level to hear appeals from the district courts. The Supreme Court was affirmed as the highest court of appeals in the federal system. The Judiciary Act of 1789 also provided in its Section 25 that the federal judiciary would have the power of judicial review over actions of state governments. Thus, acts of state governments could be nullified if they violated the United States Constitution or federal laws and treaties that conformed to it.

The Changing Role of the Supreme Court in the United States
The U. S. Supreme Court met for its first session in February 1790. During the first decade of the Court's existence, the justices had a light caseload (Casto 1995, 54-55). Under John Marshall, who became Chief Justice in 1801, the Court enhanced its authority and increased the power of the federal government at the expense of the states. The most famous case during Marshall's tenure as Chief Justice, Marbury v. Madison (1803), provided an opportunity for the Court to exercise judicial review about actions or laws of the federal government. Judicial review, or the power of the federal courts to determine whether acts of state governments or the national government are constitutional, was first directed at the state level in Ware v. Hylton (1796); the Supreme Court declared a Virginia statute void because it violated the 1783 treaty with Great Britain. In 1803, the Marshall Court for the first time declared a federal law unconstitutional.

The scenario for Marbury v. Madison (1803) began during the final days of President John Adams's administration, when he made several "midnight appointments" to the federal judiciary to ensure that the Federalist party agenda would not be totally overturned by the newly elected President, Thomas Jefferson, and his Democratic-Republican party, which held a majority of seats in the Congress. Adams appointed William Marbury, among others, to serve as a justice of the peace in Washington, D.C. Some of Adams's last-minute judicial appointments, including that of Marbury, were never delivered. When Thomas Jefferson assumed the presidency in March 1801, he ordered his Secretary of State, James Madison, to ignore the commissions. Marbury subsequently took his case directly to the Supreme Court and asked it to issue a writ of mandamus to Madison. The writ of mandamus would order the Secretary of State to carry out his duties by delivering Marbury's commission to him. Section 13 of the Judiciary Act of 1789 gave the Court power to issue a writ of mandamus in cases under its original jurisdiction.

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