The Justices Consult--April-May 1802 (First Essay)

Even before President Thomas Jefferson signed the Judiciary Act of 1802 into law on April 29, 1802, the US Supreme Court Justices (still referred to as "Judges" at that time..when was the change?) began to caucus through letters to decide whether, in fact, they should "obey" the new law and what that obedience would mean. As we know, the law replaced the Judiciary Act of 1801, which had eliminated circuit riding duties for the Supreme Court, among other things. The 1802 law would require a resumption of circuit-riding duties. The immediate problem confronting the Justices was whether to resume circuit riding duties in accordance with the law. If they did so, would they be acquiescing in the new law in such a way that it would make it hard for them to pronounce it unconstitutional when they met in 1803?

Because the American justice system requires cases in order for law to be interpreted, a case had to wend its way through the "system" on the constitutionality of the 1802 law before they could officially decide on it. This would actually happen through Stuart v. Laird, decided in the Fourth Circuit in Dec. 1802 (John Marshall Circuit Judge), where the circuit riding duties of the Supreme Court judges as well as the notion of continuity of judgment between sucessive courts was decided (I may need an essay on this...). Stuart v. Laird actually made it to the Supreme Court in March 1803.

Text and Commentary on April 19, 1802 Letter

So, the Federalist-leaning Justices were confronted with the problem of the Judiciary Act of 1802's constitutionality even before it was "off the press." What to do? Well, thanks to the epistolary tradition in English/American life, people wrote letters to each other in those days. Chief Justice Marshall initiated the letter writing with an April 19, 1802 missive to Justice Paterson, the second most senior Judge on the Court (appointed in 1793). Bruce Ackerman gives the letter in his Failure of the Founding Fathers (2005), pp. 164-65. I think he misinterprets the clarity in Marshall's letter. I think Marshall is confused just like everyone else at this point. Marshall appears to say one thing, but in fact there are at least four unresolved issues that pulsate through its words. Well, let's get to the text. He writes to Paterson:

"It having now become apparent that there will be no session of the supreme court of the United States holden in June next & that we shall be directed to ride the circuits, before we can consult on course proper to be taken by us, it appears to me proper that the Judges should communicate their sentiments on this subject to each that they may act understandingly & in the same manner."

So far, so good. Law passed (it would be signed in 10 days); we will have to ride the circuits again. We won't meet in June as scheduled (the law eliminated the June term). We need to talk about it. Let me start the conversation. Well, what does Marshall propose?

"I hope I need not say that no man in existence respects more than I do, those who passed the original law concerning the courts of the United States, & those who first acted under it. So highly do I respect their opinions that I had not examind them & shoud have proceeded without a doubt on the subject, to perform the duties assignd to me if the late discussions had not unavoidably produced an investigation of the subject which from it would not otherwise have receivd."

Marshall begins by referring to the Judiciary Act of 1789 ("original law") and his respect for it. He respects also those who "first acted under it" (his predecessors on the Supreme Court--he is still the Junior Judge on the Court). He would have no reason to reexamine the Act (he is thinking about the constitutionality of the circuit riding duties of the Supreme Court judges required by that law) were it not for "late discussions" on it (This discussion was now "in the air"). Thus, Marshall is ready to start weighing in on it.

Issues to "Weigh In" On

But before we hear Marshall's "take" on where things are now, we need to identify or sort out a number of issues. Some of them are the following: (1) Was the circuit riding provision of the Act of 1789 constitutional? (2) If the Supreme Court Judges were required to do Circuit Court duites by riding circuit, did they need to have two commissions (i.e., two sheets of paper)--one as Supreme Court and one as Circuit Court Judge? Or was one enough? (3) Was it proper to transfer work, judgments, motions, etc. from one court to another if Congress abolished or reconstituted courts? For example, we have lots of courts in view even at this time. Let's take the example of federal circuit courts in Virginia. (a) From 1789-Feb. 1801, Virginia was in the "Middle Circuit," served by one or two Supreme Court Judges and a local District Court Judge. (b) But then, from Feb. 1801-March 8, 1802, Virginia was in the "Fourth Circuit," presided over not by a Supreme Court Judge and a District Judge, but by three Circuit Judges. It was a different court. (c) But then, it seems that when the Act of 1801 was repealed on March 8, 1802 that the circuit of Virginia reverted to the Middle Circuit through the Judiciary Act of 1789. (d) But then, fourth, with the passage of the Judiciary Act of 1802 on April 29, 1802, Virginia is back in the Fourth Circuit, but now it is presided over by one Supreme Court Judge and one District Court Judge. Thus, you really have not two but four different court arrangements by the time you get to the Summer of 1802. What happens, then, if judgments are rendered under the 1789 Act, but they are executed under the 1801 Act and that garnishments or further judgments are executed under the 1802 Act? Is there a continuity of judgments, etc. when there has been a discontinuity of courts? (4) Then there is the difficult issue of whether Congress can kick judges off courts, which it did by the 1802 Act, without a showing of a lack of "good behavior" on the part of the Circuit Judges?

Conclusion

All of these issues were swirling "in the air" when the Supreme Court Judges were having their epistolary correspondence. Marshall will weigh in on two of them in the remainder of the letter, without the sense that he has sorted out the issues seriatim or has decided if all the issues are just species of one larger genus.

Let's turn to the rest of his letter to see what he does.

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