By the end of April 1789, a new Congress of the United States had convened, and the nation’s first President inaugurated. But the government would not be complete until a national judiciary was established. According to Article III of the Constitution, “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.” Although some jurisdictions of the Supreme Court were specified in Article III, the Constitution made no provision for the size of the Court, the structure of the federal court system, or its procedures. These were left for Congress to decide, and Congress acted swiftly.

Even before the inauguration of President George Washington, Congress had begun the laborious task of creating the new government’s structures and processes. The Senate, whose deliberations were conducted in closed sessions, was the first to act. By late April, just one day after the Senate achieved a quorum and under the leadership of Senator Oliver Ellsworth of Connecticut, a bill to establish the federal judiciary was presented for consideration. On June 12, S. 1, the first piece of legislation ever proposed in the upper house of Congress, was reported out of committee, providing for a Supreme Court consisting of a chief justice and five associate justices who would convene twice a year. The bill also divided the country into thirteen judicial districts, each district composed of its own court, a United States attorney, and a federal marshal.

Appeals from district courts would be heard by “circuit courts,” made up of a district judge and two members of the Supreme Court who would “ride circuit” and meet in their assigned districts twice a year. The bill further defined the jurisdiction of federal courts and the kinds of cases that could be brought to them. Finally, it established the office of Attorney General “to prosecute and conduct all suits in the Supreme Court.”

Ellsworth was a worthy proponent of the Judiciary Bill. He had represented Connecticut at the Constitutional Convention as an advocate of the small States and participated in the compromise between the large and states. He had been a member of the Committee of Detail and a leading advocate for the Constitution at Connecticut’s ratifying convention. Earlier he had served in the Continental Congress and as a state judge. Aiding Ellsworth was New Jersey’s William Paterson who had presented the New Jersey Plan at the Constitutional Convention. Sparring against Ellsworth and Paterson were those who believed a federal judiciary would wield too much power as well as those who believed it would not have enough power. Of special concern to some was whether federal courts might overrule state laws regulating payment of debts, a chronic issue facing debtors and creditors during and in the aftermath of the War for Independence.

Among the bill’s most controversial provisions was that which permitted federal courts to overturn state legislation if they conflicted with treaties, federal law, or the Constitution. On September 24, President Washington signed S. 1 into law as the Judiciary Act of 1789. The same day, he nominated John Jay to be the first Chief Justice of the United States and five others as Associate Justices – John Blair of Virginia, William Cushing of Massachusetts, James Wilson of Pennsylvania, James Iredell of North Carolina, and John Rutledge of South Carolina. Each of them had participated in establishing the Constitution.

Required by law to convene twice a year, the Supreme Court scheduled its first session for February 1, 1790, at the Merchants Exchange Building in New York City. District courts had already been created and the District Court of New York had been meeting in the building since the previous November, the first meeting of any court created under the new Constitution. Just prior to the Supreme Court’s first session on the second floor of the Exchange, city officials moved the market’s butchers across the street to spare the Court “interruptions from the noise of carts.” Lacking a quorum, the Supreme Court’s first session was delayed until the next day, February 2.

Unsure as to how the new justices should dress, Chief Justice Jay probably arrived in a black silk robe with salmon-colored stripes, captured later on canvas by the renowned painter Gilbert Stuart. Spectators crowding into the courtroom admired “the elegance, gravity, and neatness” of the Justices’ attire, but mocked Justice Cushing when he strolled the city streets wearing the professional wig of an English judge. Causing a stir and suffering taunts by some boys calling out “My eye! What a wig!” he never wore it again.

The Supreme Court’s first term was characterized by a crowded courtroom, but there were no cases to be heard. Instead, the Court spent its first days developing its own procedures. After a week and hearing no cases, the Court closed its first session. Nevertheless, the justices’ work was not done; they now “rode circuit” to hear appeals in the circuit courts.

The Supreme Court’s second annual session convened in August, once again at the Exchange. Its first docketed case, Staphorst v. Maryland, was settled before oral arguments took place. Similarly, its first appeals case was dropped before arguments. Its first recorded decision, West v. Barnes, was handed down on August 3, 1791, months after the capital had moved from New York City to Philadelphia. It was an unremarkable case involving a financial dispute and handed down the day after both sides had argued its case.

For the next three years, the Supreme Court would have little business before it. Most federal cases were decided in federal District Courts or on appeal when Supreme Court Justices “rode circuit” (and continually complained about the excessive amount of travel, an issue to be resolved at a later time). However, in 1793, the Court’s controversial decision in Chisholm v. Georgia would prompt adoption of the Eleventh Amendment to the Constitution, limiting the Court’s jurisdiction. Other issues would be determined later as new circumstances would demand, including the Court’s refusal to give advisory opinions to the President and its assumption of the power of judicial review in Marbury v. Madison in1805. But for our purposes, by February 2, 1790, the third branch of government was in place, completing the “more perfect union” designed and ratified by the people’s representatives.