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                The Justices Consult (April-May 1802), Second Essay 

                                           Agreeing to Go Back On Circuit 

Chief Justice Marshall concluded his April 19, 1802  missive to Justice Paterson with ominous words:

     "This is a subject not to be lightly resolved on. The consequences of refusing to carry        the law into effect may be very serious..." 

He doesn't say specifically what he is referring to, but an all-out attack on the Judiciary by Jefferson, beginning with impeachment trials, would no doubt be foremost on his mind. Thus, even though Marshall is of a mind not to comply with the new law, and even though he knows that other arguments for non-compliance are "in the air," he also knows that the stakes are extremely high. I think it essential to highlight this awareness of Marshall on April 19, 1802, for it provides the context for the Supreme Court's first decisions when it reconvened in February 1803. 

The Justices might disregard issues of professional and even personal security, but we can hear in the Chief Justice's words the beginning of concern for a larger issue: the integrity of the institution of the Supreme Court and its continuance, and the search for a place where that Court (and the judicial branch in general) could assume a vital role in American life while not treading on the prerogatives of other branches. Three siblings are clustered in the same bedroom; how do they each perform their respective functions without stepping on the others? 

                                                    Back to the Justices 

But these more theoretical issues, though perhaps on the Justices' radar screens, were submerged by the practicalities of the need to decide on whether to go out "on circuit" beginning after the effective date of the Judiciary Act of 1802 (July 1, 1802). Marshall wrote to Justice Paterson, and he also enclosed a letter to Justice William Cushing, which he wanted Paterson to deliver--no doubt saying substantially the same things. Justice Samuel Chase also received an April 19 letter and responded to it with his own letter of April 25. The heart of Chase's objection to the 1802 Act was that since it hadn't abolished the circuit courts (just changed the composition of the judges), then, in fact, the 1802 Act didn't "destroy" the office of Circuit Court judge, provided for in the 1801 Act. Thus, for the Supremes to try to "take over" the function of the already-existing Circuit Court judges would be a wrongful attempt to usurp the offices of other people. That was Chase's approach.

Then, in a paragraph that I want to highlight, Chase makes an argument that will form the basis of a significant point made by Justice Marshall in Marbury v. Madison. The argument is that the Supreme Court has both original and appellate jurisidiction, but since original jurisdiction is so narrowly conceived by the Constitution (Art III), a Supreme Court Justice riding circuit would be acting as if he had original jurisdiction over a case (this was before the circuit courts were appellate bodies) when in fact the Supreme Court's original jurisidiction is quite constricted. As Chase says: 

     "The Constitution intended that the Judges of the Supreme Court should not have              original Jurisdiction, but only in the few cases enumerated." 

Actually, in my mind, this is not a strong argument, because the Constitution talks about the power of the Supreme Court qua Court, and not of the ability of any individual justice to hear a case. But it will contain the germ of a good argument which Marshall will pick up on in Marbury v. Madison. The point should be clear to you lawyers, historians and law students who read this--pick up arguments wherever you go; you never known when they might be useful. 

Now that we know how Justice Samuel Chase both agreed with Justice Marshall and nuanced his arguments, but for different reasons, we have some insight into the way that the 1802 Act  really challenged the Supreme Court.

                                             The Other Justices Weigh In 

One Justice seems to be completely invisible in all of this--Albert Moore (appointed by Adams in 1800). No one every says anything about him, and Marshall himself only mentions in his second letter of May 3 that he "shall communicate" with Judge Moore. I don't know if that meant that Moore was generally "out of the loop;" in any case, the other Justices weighed in forcefully--on the other side. In a May 3 letter to Paterson, Marshall says the following (letter in Ackerman, pp. 169-70): 

     "Mr. Washinton also states it is his opinion that the question respecting the                        constitutional right of the Judges of the supreme court to sit as circuit Judges ought to      be considered as settled & should not again be moved." 

He says "also" here. Does this mean that Justice Paterson or Justice Cushing had already weighed in on the issue in opposition to the Chief Justice? It seems to mean, at least, that there are now two Justices in favor of some confrontation with the Jefferson Administration (Chase and Marshall) and two Justices opposed (Washington and probably Cushing). Then, late in May, Justice Paterson weighed in on the controversy: 

     "On the constitutional right of the Judges of the supreme court to sit as circuit judges,        my opinion coincides with Judge Washington's. Practice has fixed construction, which        it is too late to disturb. If open for discussion, it would merit serious consideration; but      the practical exposition is too old and strong & obstinate to be shaken or controled.          The question is at rest. If this should be the prevailing opinion, & their be nothing more      in the case, our meeting would be of no use."

The last words refer to a meeting that Marshall was planning to call of the Justices in the summer in the District of Columbia to talk further about the issues. Though this would not be a regular session of the Court, such a meeting was not constitutionally or otherwise prohibited. Note what is going on here. Even though Marshall tried to frame the issue on April 19 as a "commissions" issue, it quickly became reframed to a "circuit riding" issue. Maybe Marshall intended it from the beginning to be a "circuit riding" issue but simply had commissions "on the brain." In any case, the Court seemed to revolt on him. We don't know what Judge Moore said in the case, but we know that three of his colleagues (Washington, Cushing and now Paterson) disagreed with the Chief Justice. Any Supreme Court objection to the Jefferson Administration on the issue of circuit riding was, clearly, going nowhere. 



Now that these issues have been decided by the end of May 1802, the way is clear for the Court to go back on circuit, and then to affirm the constitutionality of that practice, as well as the continuity of courts, when Stuart v. Laird is decided by the Supreme Court in March 1803. But, in my reading of history, the Supreme Court and Chief Justice Marshall will actually have the last laugh--in Marbury v. Madison.  The essay on that case ought to make it clear how Marshall pulled out a signal judicial victory in the midst of the Republican landslide 

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