The Justices Consult II (Apr-May 1802)
Bill Long 11/3/07
Chief Justice John Marshall's "Angle"
Let's continue, then, with Chief Justice Marshall's letter to Justice Paterson:
"The result of this investigation has been an opinion which I cannot conquer that the constitution requres distinct appointments & commissions for the Judges of the inferior courts from those of the supreme court."
Here is where the Chief Justice tips his hand. He doesn't really deal with the issue of eliminating judges, or judicial salaries, or discontinuity of courts or even directly with the constitutionality of circuit riding. He seems at first only to deal with the issue of slips of paper. That is, if you are commissioned as a Supreme Court Justice, you ought only to deal with Supreme Court business; you ought not to involve yourself in circuit duties or circuit judge responsibilities. Your work depends on the commission you receive. But here we must pause and reflect.
There was perhaps no other individual alive at the time (1802) who knew more about delivering and screwing up the delivering of commissions than John Marshall. He was Adams' Secretary of State in Feb-early March 1801, when commissions for Circuit Court Judges, District Court Judges, and Justices of the Peace (in the District of Columbia) went out or were supposed to go out. It would actually be nice to see the wording of an actual commission. Have you ever seen one? I haven't. But I assume that they declared the Court/Office to which the person was appointed. Because the first Supreme Court Judges also were Circuit Judges, he seems to be saying that they needed two commissions, two slips of paper, in order for them to function in both capacities. But, as he would best know, the people receiving commissions as Supreme Court Judges (did he affix the seal to his own in Jan. 1801?), were appointed solely as Supreme Court Judges. The statute (in this case the Judiciary Act of 1789) then spelled out what that duty entailed--which included circuit riding. Thus, there was, in his mind, a tension between the statute and the commission.
So, Marshall just seems to be saying, "We need two slips of paper if they expect us to ride circuit." The implication of his statement, however, is clear. Unless we receive those two slips, asking us to perform Circuit Court responsibilities is beyond the scope of our commission. It isn't so much that the Judiciary Act of 1789 is unconstitutional, it is just that it misunderstands the nature of a commission.
Thinking About Marshall's Statement
Marshall's argument seems to me stilted and hypertechnical at this point. Well, if you look at it as the opening "salvo" or first stage in a conversation that may take months to resolve, we understand precisely what is going on. Rather than, as Ackerman argues, trying to "build a consensus" on a lowest common denominator, the person who initiates discussion when a swirling mass of uncertain things is "in the air" will, no doubt, do it tentatively and incompletely. Or, to put it differently, the first attempt in discussion just "gets the ball rolling." It often shouldn't be taken as the "last word." It is barely a tentative "first word." It is like trying to grab hold of a whirling object before you, being satisfied that if you at least hang on to something of the object, you can eventually bring it under control. Thus, I see this sentence in Marshall's letter as a first tentative step towards exploring the rather massive implications of the Judiciary Act of 1802. There really are tons (or at least 4, as I argued here) of big issues that the Act either implicitly or explicitly explores; Marshall is gingerly and tentatively exploring one of them. He has commissions "on the brain," since it was his screwing up of the commissions (i.e., not delivering them on time) that was one of the reasons things were in the mess they were in 1802. Actually, he would "redeem" the mess through a remarkable sleight of hand in Marbury v. Madison, but that is still 11 months away at this point.
Wading in the Water
So, Marshall begins to wade into the bracing waters of the 1802 Act by tentatively suggesting that if the Supreme Court Judges were expected to continue circuit riding, they needed a separate commission for that. Then, he continues:
"It is however my duty & my inclination in this as in all other cases to be bound by the opinion of the majority of the judges & I should therefore have proceeded to execute the law so far as that task may be assigned to me..."
He is saying, 'I need your opinion, guys.' He isn't a judicial "tyrant;" he demonstrates a collegial style here. He would execute the law as far as the task is assigned to him--that is, when a case came up in the normal course of things. But now he asks their opinions. Yet, he can't help making another statement..
"had I not supposed it possible that the Judges might be inclined to distinguish between the original case of being appointed to duties markd out before their appointments & of having the duties of administering justice in new courts imposed after their appointments.."
Now he seems to be saying something else, though the language isn't crystal clear to me. Here he now seems to refer to duties on the Justices commanded by statute, rather than simply the commissions they hold. He knows that some will distinguish between duties already required of Judges when they are appointed (i.e., the Judiciary Act of 1789 imposed duties on Judge Cushing when appointed in 1790, Judge Paterson in 1793, Judge Chase in 1796, or Judge Bushrod Washington in 1799, for example) and those new duties assigned them (by subsequent Acts). But he confuses or conflates the issue a bit by talking about new courts in the end of the quotation. Thus, he is sliding into new issues here, the "discontinuity of courts" issue. But then, he says that this isn't really his issue:
"I do not myself state this because I am myself satisfied that the distinction ought to have weight, for I am not--but as there may be something in it I am induced to write to the Judges requesting the favor of them to give me their opinions which opinions I will afterwards communicate to each Judge."
Ah, now it is becoming clearer. The Chief Justice isn't so impressed by the "discontinuity of courts" argument. But others might be. That is, the Chief Justice, rather than trying to establish a minimum of agreement on the same point, as Ackerman suggests, is really trying to get his colleagues to object to the law on any grounds.
Thus, in fact, the Chief Justice is broaching a number of issues in this letter. Though the legitimacy of circuit riding might be at the base of it, he really is aware of other issues too--relating to the continuity of duties and of courts under subsequent statutes. He may at this point have his opinion and rest it on the commissions, but the issue is really "up in the air." Let's see now how the other judges "weigh in" on the issue.
Copyright © 2004-2009 William R. Long