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To Federalists, the Bill of Rights seemed superfluous; the original Constitution was a model of caution that contained careful checks and balances on the powers of the President, Congress and the Supreme Court. As for the Court, Alexander Hamilton called it "the least dangerous branch." It would have "no influence over either the sword or the purse; no direction either of the strength or of the wealth of society; and can take no active resolution whatever."
Federalist Hamilton was partly wrong, or perhaps dissembling. If the Constitution stressed stability, it also permitted change. If the Government had limited power, it also needed more power to serve a nation that was growing in every direction. The swelling union required a unique umpire to allocate that power. The umpire was, and has been, the Court.
Eternal Expounding. In his audaciously activist regime (1801-35), Chief Justice John Marshall established the Supreme Court's right to review acts of Congress and State legislatures; he spelled out the supremacy of the Supreme Court over state courts in constitutional cases, as well as congressional authority over interstate commerce—a power so vast that it is now used, among other things, to regulate agriculture, limit prostitution, and forbid racial discrimination in public accommodations.
The states fought Marshall every inch of the way. When the Supreme Court ruled itself able to review state criminal cases, Virginia's chief justice accused Marshall of "that love of power which history informs us infects all who possess it." Marshall persisted. "It is a Constitution we are expounding," he said in 1819, holding that it must ever adapt to national change in order to "endure for ages."
The Supreme Court is still devoid of fiscal or physical power; it relies on the executive branch of the Government to enforce its orders and on Congress for its money and most of its jurisdiction. Congress can punish it by curbing its jurisdiction, by changing the number of Justices,* or by overruling decisions with new laws and (a much tougher job) proposed constitutional amendments.
Ultimate Tribunal. For all the checks and balances, though, the Court is more powerful than any other in the world. It rules on fundamental social and political questions that confront no other judges. But it exercises a power that is hedged in paradox. The Supreme Court's peculiar role is to lead, yet to follow; to be a national conscience, yet reflect a national consensus. Much of its work consists of construing federal statutes, the immensely influential job of deciding exactly what Congress intended when it forged a law in the heat of compromise. Much involves the regulation of all other federal courts, an activity which in turn affects state courts. Last and best known are the Court's great constitutional cases affecting the rights of all Americans.
Contrary to popular legend, the Court cannot spontaneously issue ex cathedra