The Background of Marbury v. Madison II--Events of 1802/03

If the events of Dec. 1801 taught the Court that they could expect no cooperation or even recognition of any kind from the White House, events of 1802 further limited the Court's possible range of decisions when it convened again in Feb. 1803. While the Judiciary Act of 1802 was waiting for Thomas Jefferson's signature, the Supreme Court Justices began a remarkable series of letter exchanges on whether and to what extent they should 'obey' this new law. The new law would, among other things, require them to return to circuit riding, a practice discontinued under the Judiciary Act of 1801. In addition, the new law would negate the appointments of the 16 Circuit Judges under the 1801 Act, only 12 of whom were now Federalists. As I have argued in greater length here, Chief Justice John Marshall saw, through the letter exchange, that he wouldn't have a majority of Justices in his Court who would actively oppose the Judiciary Act of 1802. Four of his colleagues (Cushing, Paterson, Washington, Moore) actually supported the return to circuit riding. The central argument supporting it was that the practice had been so long-established, from 1789-1801, with Congressional acquiescence, that to expect to have credibility by declaring such a practice "unconstitutional" in 1803 would have sounded hollow indeed. The Court needed credibility; opposing the Judiciary Act of 1802 when the Court desperately needed credibility would have resulted in its becoming a marginalized laughing-stock.

So, even though Marshall wanted to contest the law on the circuit-riding point (he actually framed it in terms of needing two commissions if they were to be required to do Circuit Court duties, too), he accepted his colleagues' opinions. All the Justices (still called Judges then) returned to circuit riding. This act alone would, in my judgment, have almost precluded them from declaring unconstitutional the 1802 Act when they returned to the Court in Feb. 1803. Well, maybe they could invalidate it on the ground that it removed vested rights from 16 men--Circuit Judges appointed under the 1801 Act. But, see event # 4 below. Before we get to # 4, I need to pause briefly on event # 3.

Event # 3--The Congressional Elections of Fall 1802

In the Fall 1802 Congressional elections, the Republicans extended their gains over the Federalists. Whereas the 1800 elections left us with a House controlled 68-38 by Republicans and, eventually, a Senate controlled by the Repulicans 17-15, the 1802 Congressional elections yielded a Republican House advantage of 103-39 and a Republican Senate majority of 25-9.**

[**What's to explain the expansion of the House of Representatives by an incredible 36 seats in two years? It added 33% to its membership in one Congress. The Republicans were on such a roll that they would and could do almost anything to add to their numbers.]

That is, the Republican landslide had swept the country. The Court was the last bastion of the Federalist-controlled days. Make no mistake about it, however. The Court could not ignore the elections of 1802. The power differential between the Republicans and the Court was now running so strongly against them at this point that they would be fortunate if their voice was even able to be heard above the pro-Jefferson "din" that filled the air.

Event # 4--the Appearance of the Removed Judges in Washington, DC in January 1803

By January 1803, it seemed as if there was only one possible ground on which the Court might invalidate or seriously question the Judiciary Act of 1802--and that was because there were "vested" rights conferred on the Judges through Presidential appointment, rights that Congress couldn't undo. It was this precise point that was at issue at the end of January-beginning of February 1803 in the Congress.

Robert Ackerman, in his Failure of the Founding Fathers, is helpful in giving some of the text of the Congressional debate here, even though he says that it began on January 27, 1802. Nope, his editor didn't catch the error because editors in general don't know history, and Ackerman's legion of law students and faculty colleagues didn't catch the error because they probably didn't read the book carefully. Well, it was January 27, 1803. In a memorial supported by many of the Circuit Judges deposed by the 1802 Act (deposed as of 7/1/02; Ackerman gives the impression that 11 Judges supported the measure), Judge Oliver Wolcott, formerly of the Second Circuit, wrote:

"In virtue of appointments made under the constitution of the United States, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior..."

I don't need to quote any further. We have the "theory" here before us. The Judges' positions were "vested" as of appointment; therefore a subsequent Congress can't "divest" them of their appointments.

The House quickly rejected the appointment of a select committee to consider the issue, and buried it in a party-line vote. Then, the issue moved over to the Senate. The Senate appointed a select committee, which returned to the floor on Feb. 3, with a resolution asking that a quo warranto writ be filed by the Attorney General against Richard Bassett, one of the deposed judges, for the purpose of reaching a judicial decision on these claims. But when this came to the whole Senate, it rejected this recommendation of the committee by a 15-13 vote.

Thus, Congress wasn't going to support the deposed judges. And, recall, this is the lame-duck Seventh Congress. When the Eighth Congress took office in one month, it would have a much larger Republican majority. If the judges had the smallest whisper of a prayer from the Seventh Congress, they would have had no sympathy at all in the Eighth Congress.

Conclusion

The Supreme Court returned to work, after a 14-month hiatus, at the same time the Senate was rejecting the plea of the deposed judges. That is, the issue was so clear and so evident to the Supreme Court that there was no remedy for these men that if the Court had the effrontery to give them relief, the Court could be assured that no one in Government would pay them the slightest heed. Thus, when the Court made ready to hear and consider Marbury that very month, they did so in the context of this latest rejection.

All grounds for rejecting the Judiciary Act of 1802 were now cut out from under the Justices--if, that is, they wanted credibility for future decisions they made. In addition, they knew that the President (and probably the Congress) would do nothing that the Supreme Court required them to do. If the Supreme Court was going to try to make any kind of positive statement for itself in these two cases (Marbury v. Madison and Stuart v. Laird) it would have to be through the articulation of some principle that needed no Administration or Congressional approval. With these constraints, then, the brilliance of Marbury becomes immediately apparent.

The next essay will summarize briefly the two cases; they are almost anti-climactic now that you know all these things...

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