I think I’ve previously written about the fact, which I find highly amusing, that for years after it was created the U.S. Supreme Court basically had nothing to do.

This makes sense if you think about it: if you are creating a court system for the first time, like when Congress created the federal system in 1789, it’s going to be a while before new cases get to the top. And so, as the Supreme Court Historical Society tells us, the Court’s first session in 1790 featured “a crowded courtroom [but] an empty docket.” Because “[a]ppeals from lower tribunals came slowly, … for its first three years the Court had almost no business at all.” The law required it to meet twice a year anyway, so it did. Of course, most likely the crowds dwindled significantly after the novelty wore off, so there must have been at least five pretty boring sessions.

I like to imagine the justices sitting out front playing checkers or something and asking passersby whether they had any disputes that needed resolving. Within the Court’s original jurisdiction, of course. “Hail, good fellow, hath thee any Cases affecting Ambassadors, other public Ministers or Consuls, or to which a State be Party?” “None have arisen since you asked this morning, my Lord, but should that change I shall inform thee at once.”

What were they actually doing during these first few meetings, you may be asking? That is an excellent question that I am sure is answered in a book somewhere. But it would make sense for them to have started by drafting a set of court rules, and as you can see below, they did indeed do this. (If they did it in open court, the crowds would have dwindled even faster.)

The list below was published in 1803 (luckily, someone has stamped “Not Current” at the top so you don’t get confused) and contains the rules issued up to that time. Five of them date all the way back to February 1790. Among other things, they made John Tucker the first Clerk of the Supreme Court, established requirements for lawyers practicing before the Court (their professional character “shall appear to be fair”), and set forth the required oath. And apparently that was deemed enough work for the year, or at least enough rules to start with.

The Court issued two more rules in 1791, and they suggest to me that indeed the Court still had nothing significant to do. Rule VI rejiggered the oath, apparently just to allow an “affirmation” for those who did not wish to “swear”; and Rule VII, issued “in answer to the motion of the attorney-general, made yesterday,” informed everyone that the Court would generally practice in the same way as the English courts had, except when it didn’t want to, and then it wouldn’t. I have not researched whether the Attorney General, then Levi Lincoln, considered this a helpful answer to his question, but the question and answer themselves seem like pretty conclusive evidence that the Court at that time had not yet actually done anything.

But it looks like that had changed by 1795, when the Court issued the fateful Rule VIII:

The court gave notice to the gentlemen of the bar, that hereafter they will expect to be furnished with a statement of the material points of the case from the counsel on each side of the cause.

From which I can only surmise that when the Court actually heard its first case, some guys just walked in and started talking without having given the justices anything to review beforehand. But things had changed. “We’re not just sitting out front now shooting the breeze, Frank. You have to file papers.”

Yes, they had also stopped talking like Shakespeare. That happened in 1794.