The Act of March 2, 1793--Having Mercy on the Supreme Court--Sort of

In order to understand the massive changes brought about by the short-lived Judiciary Act of 1801, passed by the lame-duck Federalist-controlled Congress after the 1800 Presidential election, we need to understand aspects of the Judiciary Act of 1789 as well as an act passed by Congress on March 2, 1793. This and the next essay will look at the 1793 Act, but before getting there it might be helpful to see how the 1789 statute "worked." Let's just take one example from this chart.

For example, it says that the terms of the Southern Circuit Court would commence on May 28 in Savannah, GA and Oct. 17 in Augusta, GA. Since the Judiciary Act of 1789 was passed on Sept. 24, 1789, it was impracticable for the circuit courts to begin meeting in 1789. Thus, the first session would be in Spring 1790. Sure enough, this online source tells us that the Southern circuit court met in Savannah commencing May 28, 1790 with Justices John Rutledge and James Iredell of the US Supreme Court riding circuit and Nathaniel Pendleton, District Court Judge, presiding. Two Supreme Court Circuit Justices. One District Judge. Right on. Phew. People were following the law! But you should notice one little word in the preceding description--the word "presiding." The US District Court judge presided over the Circuit Court--and not the US Supreme Court justices. This would be important, as the following will show.

The Act of March 2, 1793

I don't want to raise the issue here of "lame-duck" Congresses--i.e., Congresses with real authority to pass law after they had been voted out of office (for example, the lame-duck Sixth Congress served until March 4, 1801 and passed the controversial Judicary Act of 1801 late in February even though they had been "voted out" in 1800). There are reasons for this, not good ones to be sure, but I will consider them in another essay.

The lame duck Congress of 1793 passed the Act of March 2, 1793 (I Stat. 333, 334) because of complaints already received that the circuit riding responsibilities of the Supreme Court justices were too onerous. The Act intended to mitigate that severity. Let's look at its precise language. Chapter 22 of the Act, Section 1, provides as follows:

"That the attendance of only one of the justices of the supreme court, at the several circuit courts of the United States (three at the time--my comment), to be hereafter held, shall be sufficient, any law requiring the attendance of two of the said justices notwithstanding (i.e., sec. 4 of the the Judiciary Act of 1789)..."

Very clear. What you learn when you study statutes, however, is that the basic provision of law is often qualified by the nice word "provided." So it is here. Let's look at the "provided" clauses--

"That is shall be lawful for the supreme court, in cases where special circumstances shall, in their judgment, render the same necessary, to assign two of the said justices to attend the circuit cout or courts, and it shall be the duty of the justices so assigned, to attend accordingly."

Ok. Clear enough. The Congress was telling the Supreme Court that it still could send two Justices along if it wanted. But then, another "provided" clause was added:

"That when only one judge of the supreme court shall attend any circuit court and the district judge shall be absent, or shall have been of counsel, or be concerned in interest in any cause, then pending, such circuit court may consist of the said judge of the supreme court alone."

Thus, if the Supreme Court Justice showed up and discovered in some of the cases docketed that the District Court judge had to be disqualified or just wasn't around, his trip wasn't for naught. He could hold court alone. It doesn't allow the other way around however--that is, the District Court judge doesn't seem to be able to hold court if the Supreme Court Justice wasn't available.

But by reducing the Supreme Court's circuit duties, the Congress was creating another problem. Since there might only be two judges for a circuit court, what would happen if they disagreed with each other? Whose will would prevail? The next essay gets into this, and then deals with yet another problem probed by the Act.

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