In the quarter-century after the United States declared its independence from Great Britain, the legislature dominated the government of the new nation. In fact, under the Articles of Confederation there was neither a judicial nor an executive branch. The Constitution of 1787, however, provided for three co-equal branches. While we recognize that George Washington immediately empowered the presidency, the development of the third branch took a bit longer, as early federal judges had to learn both the powers and the limits of an independent judiciary.

Today we have the most powerful constitutional court in the world. Polls consistently show that while the American people may express doubts about the conduct of Congress or the president, they continue to show great respect for the Court as an institution and for the men and women who serve on it. Moreover, while less is known about the workings of the lower federal courts, the bulk of the federal judicial business of the United States is done in these so-called “inferior courts.”

Any proper comprehension of the government of the United States and of the federal system upon which it is built would be incomplete without knowledge of the judicial branch. The Supreme Court Historical Society holds educating the public about the work of the judiciary as one of its major goals, and thus, it is with pleasure that the society agreed to edit this issue of the OAH Magazine of History. In it, the editors take the approach that, while case study is essential to understanding the work of the courts, cases alone tell only part of the story. We have tried to fill in some of those other areas.

Professor D. Grier Stephenson, Jr.’s discussion of the literature on different aspects of the judiciary reflects this approach. Readers interested in learning more about the courts, or in developing either their personal or school libraries, will find his essay highly informative.

The most potent weapon the courts have is the power to declare acts of Congress, as well as those of state legislatures, unconstitutional. Unlike Great Britain, where a declaration of unconstitutionality by the courts does not affect the continued enforcement of the law (only Parliament may rescind a law), in the United States a judicial decision of unconstitutionality immediately renders the statute null and void. There has been considerable debate over whether the framers of the Constitution meant the courts to have such power. Pulitzer Prize-winning historian Jack N. Rakove shows that the founders clearly understood the importance of judicial review and intended the judiciary to exercise it.

We are delighted that Justice Antonin Scalia has written on a subject of which he has extensive knowledge, not to mention personal experience: the role of dissent in developing judicial doctrine. As he points out, dissents do far more than merely indicate a justice’s disagreement with the majority holding. As any scholar of the Court knows, some of its most influential pronouncements first appeared in dissent. Surely there is no greater statement on the right to privacy than the opinion of Justice Louis Brandeis in Olmstead v. United States (1928), or on the meaning of free speech in a democracy than in his opinion in Whitney v. California (1927).

Although each Court member has one vote, the chief justice is more than just first among equals. Under the Constitution, he or she is both chief justice of the Supreme Court and chief justice of the United States, and these are two independent roles. Powerful chiefs such as John Marshall and Earl Warren have led their Courts and helped to shape the nation as well as its jurisprudence. The role of the modern chief, with its extensive administrative power and political responsibilities, was pioneered by William Howard Taft, the only person ever to be president of the United States and later chief justice. Professor Robert Post, who is writing a major volume on the Taft Court, shows us how Taft developed the powers of the position.

One must also recognize that the Supreme Court, important as it is as the apex of the federal judicial system, is not the only federal court. The citizen who, for one reason or another, enters the federal court will do so at the district level, and may find an appeal at the circuit level. The district and circuit courts are the workhorses of the system, and their labors are often overlooked and underappreciated when we talk about the third branch of government. Professor David M. O’Brien explains the workings of the lower courts and shows how important they are in our governmental system.

Finally, several lesson plans explore the ways in which the history of the judicial branch can be incorporated into the classroom in ways that are engaging for today’s students.

Maeva Marcus is the director and editor of The Documentary History of the Supreme Court of the United States, 1789-1800, of which six volumes have been published to date. She is also the author of Truman and the Steel Seizure Case: The Limits of Presidential Power (1977).

Melvin I. Urofsky is Professor of History and Public Policy at Virginia Commonwealth University. His latest book is Division and Discord: The Supreme Court Under Stone and Vinson, 1941-1953 (1997).