I F THE COURTS were to be used to bludgeon Republicans, they would need laws for the job. In 1798, Congress passed and President Adams signed the Sedition Act, which outlawed not only “insurrection, riot, unlawful assembly, or combination” but writing, printing, or uttering words that would bring the president or Congress “into contempt or disrepute.” The law, designed to suppress the Republican opposition, made a mockery of First Amendment free speech guarantees. But Chief Justice Oliver Ellsworth, who had been named by Washington to replace Rutledge, assured the administration privately that he saw no “constitutional difficulty” in the act.
The escalating partisanship drew in other justices. On circuit, they pitched in to apply the new law. Justice William Paterson was an enthusiastic Hamiltonian from New Jersey appointed in 1793 to replace Thomas Johnson. Presiding over the 1795 treason trials of two tax protesters in the Whiskey Rebellion, Paterson had directed the jury to find the men guilty. In 1798, he similarly secured the Sedition Act conviction of a Vermont congressman, Matthew Lyon, who had mocked Adams’s “unbounded thirst for ridiculous pomp, foolish adulation or selfish avarice.” Paterson was ready to tell the jury to find Lyon guilty before it could hear his defense. The press was not spared. In another case, Paterson obtained the indictment of the leading Republican publisher in New England, Thomas Adams, for his criticism of the Sedition Act as a Federalist attempt to “screen from scrutiny the conduct of your own Government and to silence by an argument of force the remonstrances of reason.” But Thomas Adams died before he could be brought to trial.
Even more ardent in persecuting Republicans was Justice Samuel Chase, appointed to the Supreme Court by Washington in 1796. Chase was a onetime Anti-Federalist from Maryland who had turned hyperpartisan Federalist, even stumping for John Adams while serving on the Supreme Court. He brought Sedition Act indictments against Republican journalists and printers, during one trial telling the jury, “I cannot suppress my feelings at this gross attack upon the President.” He indignantly accused a handbill author of attempting to influence voters in the next election. He even obtained the conviction of one David Brown, a semiliterate itinerant orator, for “sowing sedition in the interior country” of Massachusetts. Though Brown apologized for “uttering his political sentiments,” Chase gave him the heaviest sentence under the law—eighteen months in jail and a $480 fine.
But the nadir of Sedition Act prosecutions was reached when an old fellow named Luther Baldwin was clapped into federal jail. On his way to a tavern in Newark, New Jersey, Baldwin had been sourly observing the president and Mrs. Adams drive down the city’s Broad Street to the accompaniment of a sixteen-gun salute. Someone nearby him commented, “There goes the President and they are firing at his a——.” The drunken Baldwin replied that he “did not care if they fired thro his a——.” That was sedition.
EXTREMES BEGET extremes. Even as some Republicans talked of secession, the Sedition Act prompted Jefferson and Madison to frame resolutions asserting the rights of states to reject federal laws that violated the Constitution. Because the Sedition Act was “expressly and positively forbidden” by the First Amendment, Madison wrote in 1798, states “have the right, and are in duty bound, to interpose” and declare it unconstitutional. Only the Kentucky and Virginia legislatures approved such resolutions. Ten states rejected what they considered the dangerous and subversive doctrine of the resolutions, with Vermont replying that it was not for the states to decide the constitutionality of laws, “this power being exclusively vested in the judiciary courts of the Union.” But what if those courts were eagerly abetting repression and voiding the First Amendment?
The brutal partisanship reached a climax with the 1800 elections, a resounding repudiation of the Federalists and a triumph for the Republicans. Politically, the Federalist era was over, but Adams and his congressional allies would not leave the scene without an attempt to ensure that the judiciary would remain packed with their partisans far into the next century. The Judiciary Act of 1801 became law on February 13, 1801, a mere three weeks before Thomas Jefferson was to be inaugurated as president. The act put sixteen new circuit court judgeships at the disposal of President Adams. Republicans denounced it as the “law of the midnight judges” as Adams set feverishly to work to distribute judicial plums to worthy Federalists, and Congress made haste to confirm them.
Then, just four days before Adams’s time ran out, Congress created a new court for the nation’s new capital, the District of Columbia, with three judgeships—one went immediately to a nephew of Adams and a second to the brother of his secretary of state, John Marshall—as well as a mass of new marshals, clerks, registers, and justices of the peace. To fill all these offices, the president and Marshall worked late into the night on the eve of Jefferson’s inauguration, signing and sealing commissions. There wasn’t time enough to deliver them all before Jefferson became president. One who never received his was a prosperous Georgetown Federalist, William Marbury.
There was one last poison pill for Jefferson in the 1801 Judiciary Act, meant to frustrate him not by addition but by subtraction. Anticipating that a justice might retire early in Jefferson’s term—the rigors of circuit riding continued to make invalids of judges—congressional Federalists cut the court’s membership from six to five in order to deny Jefferson the opportunity to replace a departing justice. While Republicans would make short shrift of this ploy when they repealed the act after coming into power, Jefferson had to wait three years for a chance to unpack the Supreme Court as the Federalists clung tenaciously to their seats.
LITTLE MORE THAN a decade after the founding of the new federal government, the Supreme Court had shifted from its docile partnership in George Washington’s three-horse governing team to become a vortex of partisan controversy. Though the court’s authority remained uncertain, the potential dangers of judicial power were amply revealed in the abusive Sedition Act prosecutions, when unelected judges aggressively served the political purposes of the ruling party.
James Madison recognized those dangers and also saw what must be the remedy. Defending his Virginia resolution in 1800, Madison again denied that “the judicial authority is to be regarded as the sole expositor of the constitution.” If the legislative process meant that the Supreme Court would have the last word on constitutional issues within the government, the court did not have the ultimate last word. That belonged to the people: “The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than the present.”
Despite the fears he had shared with other delegates to the constitutional convention about runaway legislative power, Madison had always understood that “in our Governments the real power lies in the majority of the Community.” it was this conviction—that republican government, however checked and balanced, must be popular government—that drove him away from Washington and the Federalists in the 1790s. Government must be responsible to the people. Under the Constitution, members of the House were directly elected by the voters, the president and senators indirectly, through electors and state legislatures. All of these officeholders could be unelected at the next polling. If the people were indeed to be the final arbiters of the Constitution, lawmaking justices accountable to no one presented a special danger.
Many years after the Founding, greatly vexed by the Supreme Court’s aggrandizement of power, and especially its claim to supremacy because “there must be an ultimate arbiter somewhere,” Thomas Jefferson replied, “True, there must”—“The ultimate arbiter is the people of the Union.”
CHAPTER TWO
John Marshall ’s Constitution
ON MARCH 4, 1801, John Marshall and Thomas Jefferson stood stiffly face-to-face in the Senate chamber as the new chief justice of the Supreme Court administered the oath of office to the new president of the United States. Then Marshall stepped aside as Jefferson gave an address marked b
y its conciliatory tone after the bitterness of the 1800 election. Declaring that “we are all republicans: we are all federalists,” Jefferson said that those were merely different names for the same principle—“our attachment to union and representative government.” The new president and new chief justice were old political enemies, but Jefferson had invited Marshall to swear him in—a notable gesture, given Marshall’s role in the creation of the “midnight judges” and the fact that he himself had been the most prominent of John Adams’s late appointments.
Marshall’s promotion to the court was a spectacular example of the right man standing in the right place at the right time. Chief Justice Oliver Ellsworth, like John Jay before him, had been sent on a peace mission to Europe in November 1799. Taken ill in France, he had sent a letter of resignation that Adams received in December 1800. Had Ellsworth waited to resign until his return to the United States in March 1801, the naming of his replacement would have been Jefferson’s. Instead the plum was in Adams’s hands and he asked Jay to take it again. Adams also considered a promotion from within the court—William Cushing, a Massachusetts Federalist and Washington appointee who had filled in as acting justice while Jay had been abroad, or William Paterson, who had made his mark persecuting Republicans. But Cushing, at age sixty-nine, was the court’s oldest member, his health already beginning to fail, while Paterson was the favorite of a Federalist faction that had turned bitterly against Adams after the election debacle.
Adams had to act quickly. If he waited until passage of the Judiciary Act, which would reduce the court’s numbers from six to five at the next vacancy, he would have been forced to elevate a sitting justice. As John Marshall told the story, he came to the president on the evening of January 19, 1801, with Jay’s letter declining the appointment. “Who shall I nominate now?” Adams asked thoughtfully. Not Paterson, he decided. “After a moments hesitation he said ‘I believe I must nominate you.’ ” Marshall recalled that he was “pleased as well as surprized, and bowed in silence. Next day I was nominated. . . .”
Though Adams had two years earlier asked Marshall to fill the vacancy left by James Wilson’s death, there is no evidence that the president considered his secretary of state for the chief justiceship before that moment. Yet the choice—an act Adams later would call “the pride of my life”—was understandable. Marshall had proven his loyalty to the president first by tirelessly defending the administration’s policies in the House of Representatives and then by joining his cabinet in May 1800 when Adams’s political fortunes were sinking and his leadership was under siege even within his own party. But Marshall was a moderate Federalist—absolutely sound on the core principles of nationalism and federal power, while averse to extremes of partisanship. His opposition to the Sedition Act as unnecessarily divisive had earned him the grudging respect of some Republicans. Moreover, Marshall believed that the Constitution, as the supreme law of the land, was “the rock of our political salvation,” preserving Americans from “misery, division and civil wars,” and he assigned the Supreme Court a lofty role in defending the new constitutional order. It was to be the ultimate guardian of what in 1798 he termed “the genuine principles of the constitution, as sanctioned by the will of the people, for their general liberty, prosperity and happiness.”
Marshall was, above all, of the school of George Washington, “the greatest Man on earth,” as he called him. Their backgrounds could hardly have differed more—Washington born and bred to Virginia’s gentry, given to the pose of Cincinnatus, his people’s reluctant savior who readily surrendered power once he had fulfilled his duty; Marshall with roots in Virginia’s wild northwest frontier and a thrusting ambition that led to almost feverish land speculation and a scramble for every political office that opened up. But Marshall’s service in the revolutionary army was a transformative experience, when he stopped thinking of himself as a Virginian first and was “confirmed in the habit of considering America as my country.”
George Washington embodied that almost mystical sense of nationhood, and like him, Marshall would be dismayed by the ebbing of revolutionary unity in the 1780s as the states squabbled and competed in pursuing their self-interests. All that Marshall most valued—legal stability, social order, economic progress—was threatened by weak and incompetent government. He had firsthand experience of the fecklessness of state legislatures when he served in Virginia’s House of Delegates, convincing him that “no safe and permanent remedy could be found but in a more efficient and better organized general government.” Marshall defended the Constitution at the Virginia ratification convention in 1788, not fearing to challenge that hero of independence, Patrick Henry, head on. The new design, Marshall argued, offered “a well regulated Democracy,” with life, liberty, and property secured by a “strict observance of justice and public faith.” To Anti-Federalists like Henry who feared Congress would overpower the states, Marshall pointed to judicial review as a check. If Congress exceeded its authority in passing a law, “it would be considered by the Judges as an infringement of the Constitution which they are to guard.” They would, he promised, “declare it void.”
It was Marshall, this “Federalist of the good old school,” who, after Adams departed the capital in the predawn darkness of inauguration day to avoid the sight of his successor’s swearing-in, remained as the most powerful Federalist in the national government, left to protect the party’s principles against the onslaught sure to come. After the peaceful handover of power, comity vanished, as Jefferson’s conciliation proved an illusion. Republicans were fiercely determined to demolish the Federalist legacy, especially what Jefferson termed its “stronghold,” the judiciary, where “the remains of federalism are to be preserved and fed from the treasury.” Among the new president’s first acts were pardons of the Sedition Act victims and a halt to further prosecutions. When Congress convened in December 1801, Republicans made repeal of the Judiciary Act—the law that had enabled Adams to pack the courts after his election defeat—a very early order of business.
Some Republicans wanted to go much further in reducing and caging judicial power. In a letter to Jefferson, Virginia congressman William Branch Giles suggested a purge: “the only check upon the Judiciary system” was “the removal of all its executive officers indiscriminately.” The president’s close friend Senator John Breckinridge of Kentucky, defending the repeal measure, borrowed passages from a paragraph Jefferson had omitted from his first annual message to Congress to define the limits of judicial power. He adopted the president’s “departmentalist” view of constitutional interpretation—that each branch of the government had “an equal right” to determine for itself the constitutionality of measures and actions affecting its own sphere. Thus, the Supreme Court was supreme only in matters judicial. “To make the Constitution a practical system,” Breckinridge said, “this pretended power of the courts to annul the laws of Congress cannot possibly exist.”
But that power, never yet exercised, hung over the repeal debate. Republicans feared—and Federalists hoped—that the court would declare Congress’s repeal of the Judiciary Act unconstitutional at the earliest opportunity—its June 1802 session. In the partisan atmosphere of the moment, this was a logical expectation: a vindictive Republican measure—passed strictly on party lines—would be rejected by a solidly packed Federalist court. Moreover, since repeal directly affected the judiciary, the court was entitled to strike it down even under Jefferson’s narrow departmentalism. To forestall this, Republicans passed a law that simply abolished the court’s June sitting, ordering it to reconvene in February 1803, after repeal had been implemented.
The threatened showdown never happened. When a case challenging the constitutionality of the repeal act, Stuart v. Laird, arrived at the court in February 1803, Marshall skillfully lobbied and maneuvered to secure unanimity—or at least silence—behind the court’s minimalist opinion. The decision stated tersely that “there are no words in the constitution to prohibit or restrain the exercise of
legislative power.” Adams’s attorney general, Charles Lee, lamented that “the judiciary is certainly gone.” Lee was premature. Marshall’s prudence had saved the court from a worse confrontation with aroused Republicans. He had shown that it was not purely a mouthpiece for Federalist politicians. Still, it was as clearly a retreat by a court under siege.
How was the Supreme Court—holed up in dingy quarters in the new Capitol, shared with the District of Columbia courts, and widely despised by the public as the tool of a discredited political party—to become what John Marshall fervently believed it should be: the final authority in all matters constitutional?
SUDDENLY AN opportunity opened up, one that perhaps only a politician of Marshall’s vision and determination might have seized. It first appeared in a most humdrum fashion. In early March 1801, Marshall, already chief justice but still serving as Adams’s secretary of state, had been so overwhelmed by last-minute business that he failed to see to it that William Marbury’s commission—for the modest post of justice of the peace in D.C.—was delivered to him. When the commission fell into Jefferson’s hands, the new president ordered his acting secretary of state to withhold it. Seeing a chance to embarrass the Republican administration, Marshall’s good friend Charles Lee brought the issue to the Supreme Court in December 1801, asking for an order that would compel the commission’s delivery to Marbury. With the court on its congressionally mandated recess, the case did not come to trial until February 1803. The administration treated it as a political stunt, and the defendant—new secretary of state James Madison—was not even represented in court. But Lee argued that under the Judiciary Act of 1789, the Supreme Court had the authority to compel Madison to perform his legal duty to deliver commissions duly signed and sealed.
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Page 3