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

                                      Chief Justice Marshall Takes the Lead... 

Even before President Thomas Jefferson signed the Judiciary Act of 1802 into law on April 29, 1802, the US Supreme Court Justices began to communicate through letters to decide whether 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" so that the 1802 law would be interpreted by a lower court before the Supreme Court could officially decide on it. This would actually happen through Stuart v. Laird, decided in the Fourth Circuit in December 1802 (John Marshall Circuit Judge under the 1802 Act), where the circuit riding duties of the Supreme Court justices as well as the notion of continuity of judgment between successive courts was decided (because the Circuit Courts created under the Act of 1801 would be abolished, and their cases taken up by successor courts, the question arose whether these successor courts really had the power to take up these cases). The Fourth Circuit Court decided that imposition of circuit riding duties was within the purview of Congress; it also held that there was a continuity of judgment between successive courts. This judgment would be appealed to the US Supreme Court also as Stuart v. Laird and was decided one week after Marbury v Madison, early 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 reproduces the letter in his Failure of the Founding Fathers (2005), pp. 164-65. I think he misinterprets the confusion in Marshall's mind that comes through in the 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. Here is what he is saying, '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 &             should 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 Judiciary Act of 1789 constitutional? (2) If the Supreme Court Judges were required to do Circuit Court duties by riding circuit, did they need to have two commissions (i.e., two sheets of paper)--one as Supreme Court Justice 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 Justices 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 Justices 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?  

All of these issues were swirling "in the air" when the Supreme Court Judges were having their epistolary correspondence in Spring and Summer 1802. 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 now turn to the rest of his letter to see what he does. 

                                            Chief Justice John Marshall's "Angle" 

Let's continue, then, with Chief Justice Marshall's letter to Justice Paterson: 

     "The result of this investigation has been an opinion which I cannot conquer that the          constitution requres distinct appointments & commissions for the Judges of the inferior      courts from those of the supreme court." 

Here is where the Chief Justice tips his hand. He doesn't really deal with the issue of eliminating judges, or judicial salaries, or discontinuity of courts or even directly with the constitutionality of circuit riding. He seems at first only to deal with the issue of slips of paper. That is, if you are commissioned as a Supreme Court Justice, you ought only to deal with Supreme Court business; you ought not to involve yourself in circuit duties or circuit judge responsibilities. Your work depends on the commission you receive. But here we must pause and reflect. 

There was perhaps no other individual alive at the time (1802) who knew more about delivering and screwing up the delivering of commissions than John Marshall. He was Adams' Secretary of State in Feburary-early March 1801, when commissions for Circuit Court Judges, District Court Judges, and Justices of the Peace (in the District of Columbia) went out or were supposed to go out. It would actually be nice to see the wording of an actual commission. Have you ever seen one? I haven't. But I assume that they declared the Court/Office to which the person was appointed. Because the first Supreme Court Justices also were Circuit Judges, he seems to be saying that they needed two commissions, two slips of paper, in order for them to function in both capacities. But, as he would best know, the people receiving commissions as Supreme Court Justices (did he affix the seal to his own appointment in January 1801?), were appointed solely as Supreme Court Justices. The statute (in this case the Judiciary Act of 1789) then spelled out what that duty entailed--which included circuit riding. Thus, there was, in his mind, a tension between the statute and the commission. 

So, Marshall just seems to be saying, "We need two slips of paper if they expect us to ride circuit." The implication of his statement, however, is clear. Unless we receive those two slips, asking us to perform Circuit Court responsibilities is beyond the scope of our commission. It isn't so much that the Judiciary Act of 1789 is unconstitutional, it is just that the Act misunderstands the nature of a commission. 

                                   Thinking About Marshall's Statement 

Marshall's argument seems to me stilted and hypertechnical at this point. Well, if you look at it as the opening "salvo" or first stage in a conversation that may take months to resolve, we understand precisely what is going on. Rather than, as Ackerman argues, trying to "build a consensus" on a lowest common denominator, the person who initiates discussion when a swirling mass of uncertain things is "in the air" will, no doubt, do it tentatively and incompletely. Or, to put it differently, the first attempt in discussion just "gets the ball rolling." It often shouldn't be taken as the "last word." It is barely a tentative "first word." It is like trying to grab hold of a whirling object before you, being satisfied that if you at least hang on to something of the object, you can eventually bring it under control. Thus, I see this sentence in Marshall's letter as a first tentative step towards exploring the rather massive implications of the Judiciary Act of 1802. There really are tons (or at least 4, as I argued here) of big issues that the Act either implicitly or explicitly explores; Marshall is gingerly and tentatively exploring one of them. He has commissions "on the brain," since it was his screwing up of the commissions (i.e., not delivering them on time) that was one of the reasons things were in the mess they were in 1802. Actually, he would "redeem" the mess through a remarkable sleight of hand in Marbury v. Madison, but that is still 11 months away at this point. 


                                                    Wading in the Water 

So, Marshall begins to wade into the bracing waters of the 1802 Act by tentatively suggesting that if the Supreme Court Judges were expected to continue circuit riding, they needed a separate commission for that. Then, he continues: 

     "It is however my duty & my inclination in this as in all other cases to be bound by the        opinion of the majority of the judges & I should therefore have proceeded to execute        the law so far as that task may be assigned to me..." 

He is saying, 'I need your opinion, guys.' He isn't a judicial "tyrant;" he demonstrates a collegial style here. He would execute the law as far as the task is assigned to him--that is, when a case came up in the normal course of things. But now he asks their opinions. Yet, he can't help making another statement.. 

     "had I not supposed it possible that the Judges might be inclined to distinguish                  between the original case of being appointed to duties markd out before their                    appointments & of having the duties of administering justice in new courts imposed            after their appointments. . ." 

Now he seems to be saying something else, though the language isn't crystal clear to me. Here he now seems to refer to duties on the Justices commanded by statute, rather than simply the commissions they hold. He knows that some will distinguish between duties already required of Judges when they are appointed (i.e., the Judiciary Act of 1789 imposed duties on Justice Cushing when appointed in 1790, Justice Paterson in 1793, Justice Chase in 1796, or Justice Bushrod Washington in 1799, for example) and those new duties assigned them (by subsequent Acts). But he confuses or conflates the issue a bit by talking about new courts in the end of the quotation. Thus, he is sliding into new issues here, the "discontinuity of courts" issue. But then, he says that this isn't really his issue: 

     "I do not myself state this because I am myself satisfied that the distinction ought to          have weight, for I am not--but as there may be something in it I am induced to write to        the Judges requesting the favor of them to give me their opinions which opinions I will      afterwards communicate to each Judge." 

Ah, now it is becoming clearer. The Chief Justice isn't so impressed by the "discontinuity of courts" argument. But others might be. That is, the Chief Justice, rather than trying to establish a minimum of agreement on the same point, as Ackerman suggests, is really trying to get his colleagues to object to the law on any grounds. 


Thus, the Chief Justice is broaching a number of issues in this letter. Though the legitimacy of circuit riding might be at the base of it, he really is aware of other issues too--relating to the continuity of duties and of courts under subsequent statutes. He may at this point have his opinion and rest it on the commissions, but the issue is really "up in the air." Let's see in the final essay how the other judges "weigh in" on the issue. 

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