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                                    The Judiciary Act of 1802 


                                      A "Replacement" Piece of Legislation 

Now that the Republicans could, figuratively speaking, dance on the Federalists' graves after repealing the Judiciary Act of 1801, they had to ask themselves the question of whether they just intended a reversion to the Judicary Act of 1789, with its amendments in 1793, or whether that basic Act needed some kind of "modernizing." The Federalists, on the other hand, nursed their wounds but repaired to talk to Chief Justice John Marshall to see what he and they could do about declaring the repealing act unconstitutional. Thus, the machinations of Spring 1802 in America rivaled the intrigue and intensity of Dec. 1800-March 4, 1801. It was same song, next verse but this time it seemed as if the Republicans had the upper hand. This essay will discuss the "new" Judiciary Act of April 29, 1802 as well as the first steps leading to the "caucus" in the Supreme Court about how to "read" the plethora of Judiciary Acts coming their way. 

                                      The Judiciary Act of 1802 (the "Act") 

If you ever suffer from insomnia, read the 1802 Act (2 Stat. 156ff.). It seems so boringly procedural that you wonder if anything of significance is happening in it. But let me point out three things from the law to save you from major emotional meltdowns occasioned by actually reading the statute. First, Sec. 1 talks about the Supreme Court's new term. Under both the 1789 and 1801 Acts, the Court met in two sessions per year, December and June or February and August. Even though the Court turned out fewer than 100 written decisions in its first decade of existence, it met twice yearly. But the 1802 Act proposed that the Court meet once each year, in a February term. This was interesting, since the bill was introduced in March 1802. Thus, the Republican drafters, playing at least as much politics as its Federalists predecessors, wanted to put off the meeting of the Federalist-controlled Court for as long as possible. Who knows?  Maybe all six would be dead by then? Since the Court had most recently met in December 1801, the next time it would meet, if this bill passed, was February 1803. The June 1802 session would be scrapped. Fourteen months possibly between terms of the Court. Unprecedented. 

Then, in Sec. 4, the boom falls. Oh, it seems like such a neutral section, such a 'ho-hum' section of legislation, for it simply declares the boundaries of the circuit courts. We had circuit courts going back to the Judiciary Act of 1789, so this isn't new. But let me give you the significant lines and then tell you why they are important: 

     "And there shall be holden annually in each district of the said circuits, two courts,              which shall be called circuit courts. In the first circuit, the said circuit court shall consist      of the justice of the supreme court residing within the said circuit, and the 

     district judge of the district where such court shall be holden"

The crucial issue is the composition of these circuit courts. Under the 1789 Act they consisted of two Supreme Court Justices and the local District Court judge; this was changed in 1793 to consist of one of each. But the 1801 Act, passed by the Federalist majority, created independent, free-standing Circuit Courts, staffed by three judges who did nothing but Circuit Court duties. This was why there were 16 new judgeships created by the 1801 Act. But the 1802 Act would "revert" to the 1793 system. The circuit courts would, in essence, disappear as independent entities, staffed as they were by Supreme Court and District Court judges. But what happens to the 16 men who were Circuit Court judges under the 1801 Act? No mention is made of them in the 1802 Act. It is as if they don't exist any longer. And they wouldn't, because there was a provision in the law which set the effective date for this change as July 1, 1802. And note what else happens. The Court has to return to its hated circuit-riding duties, even the aged Justice William Cushing, who had just turned 70 during the debates over repeal. Quel dommage! 

                                             The Federalist Response 

The Federalists in Congress were helpless to ward off this Republican juggernaut. Outnumbered now both in House and Senate, they knew that their best (and only) chance was through the Supreme Court.  They wanted to get the Court either to invalidate the repeal of the 1801 Act or to help forestall passage of the 1802 Act. Bruce Ackerman's quotation of Rep. Charles Matoon is appropriate here to capture the Federalist gloom (the actual quotation refers to the time right after repeal of the 1801 Act in March 1802; The Failure of the Founding Fathers, p. 157) as:

     ". . .the death of the Constitution. I confess my feelings were very much moved at this        wanton assassination...I anticipate all the horrors of a French revolution"

President Bush's allegations in 2003-2006 that those who opposed his Iraq War strategy were giving "aid and comfort to terrorists" seems mild by comparison with this statement. Here the sentiment was that this noble experiment called America was circling the drain. 

                        The Federalists Repair to Chief Justice John Marshall 

In April 1802, John Marshall was only 46 years old. The filiopietistic evaluations of him as "The Great Chief Justice" would only start coming about 30 years the future. At this point he was still rather inexperienced in the office of Chief Justice (one year), and he himself had caused some of the problems that would come home to roost at the Court in 1803 (i.e., he was the Secretary of State who hadn't had enough time or hadn't made sure that William Marbury and others received their commissions before the end of Adams' term of office). Though he was probably the most brilliant legal mind in the states at the time, he was in a position (Chief Justice) that had to rely not simply on brilliance but on a good deal of political and personal persuasion to win the day. 

The 1802 Act can rightly be construed as an attack on the judiciary or, at least, on the previous Administration's view of the judiciary. It wanted to limit the Supreme Court's term; it wanted the Justices to resume circuit riding; it wanted to eliminate 16 Circuit Court judges. The Act might even be seen as an opening salvo in a war between Jefferson and the courts, where Jefferson might launch into impeachment efforts (he actually did this in 1804 against Supreme Court Justice Samuel Chase) to reshape the face of the federal judiciary in a Republican fashion. 

The central issue before the Supreme Court Justices as a result was whether they would comply with the 1802 law before they had a chance to review its constitutionality sometime in 1803, when it again convened. The point was a difficult one; if they began to "ride circuit" again, wouldn't this be a sort of acquiescence in Jefferson's law? But if they didn't ride circuit, the Circuit Courts would basically cease to function, and they didn't want that. The Federalists were in a real pickle.

In the context of these whirling events, the Justices began to exchange letters to each other. Not many survive, but a few do. The next essay will look at what they discussed with each other. 

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