When the newly appointed Justices of the Supreme Court assembled in the Royal Exchange Building in New York for their first session on February 2, 1790,1 the most farsighted individual could not have foreseen what the future held for this tribunal. Now less than a generation short of its 200th anniversary, the Court is universally acknowledged to be the final and authoritative expositor of the Constitution.2 Yet after almost two centuries, questions concerning this power of the Court to interpret the Constitution remain. The first set of questions centers on the substantive standards for constitutional adjudication.3 The second, with which this article deals, focuses on the conditions under which constitutional determinations should be made: who may obtain constitutional declarations and when. Although often viewed as merely technical, legalistic wrangling which unnecessarily impedes the Court in its task of constitutional exegesis, these "who" and "when" questions embody fundamental assumptions as to the Court's appropriate role in our constitutional scheme.
The constitutional text is itself spare and unhelpful on these critical questions, providing only that "the judicial power of the United States" shall extend to certain enumerated "cases and controversies," including those "arising under the Constitution. '4 Except for the creation of the Court and limited specifications as to its original jurisdiction; the remainder was left to Congress, which was expressly authorized to establish such inferior federal courts as it saw fit and to regulate the Supreme Court's appellate jurisdiction. 5 At its first session Congress quickly enacted the Judiciary Act of 1789,6 which authorized, inter alia, Supreme Court review of certain constitutional determinations by the state courts. While the Act also established lower federal courts -a step which proved to have lasting significance-it gave those courts no direct "arising under" jurisdiction, and accordingly, until the great expansion of federal jurisdiction following the Civil War,7 their constitutional adjudications resulted only as by-products of the exercise of other jurisdiction.8
Neither the Constitution nor the Act set out the circumstances under which constitutional pronouncements were proper. Article III's "limitation" of the "judicial power" to "cases and controversies" has little necessary meaning; like most provisions of the Constitution, these words bear several interpretations. And while the Act established the federal judicial system, it said little about the occasions on which it was proper for any court to decide constitutional questions. Rather, like the substantive constitutional standards, the nature and form of judicial review were slowly shaped over time.9
Henry P. Monaghan,
Constitutional Adjucation: The Who and When,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/574