Judiciary Act of 1801 (Major Acts of Congress)
L. A. Powe, Jr.
The Judiciary Act of 1801 (2 Stat. 69), an act "for the more convenient organization of Courts of the United States," cured major defects in the federal judicial system. It ended the practice of Supreme Court justices sitting as circuit judges, which had been established under the Judiciary Act of 1789. This practice had created two separate problems. First, a justice would sit on appeal at the Supreme Court to hear a case he had already decided as a circuit court judge. Second, justices found it a huge burden to "ride" the circuit, literally traveling from one court to another, often on bad roads and in inclement weather. Riding circuit caused some to avoid serving on the Court. To replace the Supreme Court justices as circuit judges, the act created sixteen new judgeships to fill the courts. Finally, it expanded the jurisdiction of the federal courts by giving them, for the first time, power to decide all cases involving federal questions.
The problems with the federal courts were well known by 1801, and legislative action to correct them had been debated since 1798. President John Adams greeted the Sixth Congress when it convened in December 1799 with a call for a judicial bill. Yet just twelve months after the Judiciary Act of 1801 passed, it was repealed by the Judiciary Act of 1802 (known as the Repeal Act).
PARTY POLITICS AND THE JUDICIARY
What made a meritorious, largely uncontroversial bill so objectionable that it was quickly repealed? Timing. Had the Judiciary Act of 1801 been passed either twelve months earlier or twelve months later, it would have been safe. But the statute was passed at a time when the effects of two-party politicst that time, the Federalists and the Republicansad become clear. Neither party trusted the other. The Federalists had controlled the executive and legislative branches up till 1800, and they had appointed only Federalist judges. The presidential election of 1800 was about to deliver a Republican, Thomas Jefferson, into the White House for the first time, as well as a Republican majority to Congress. The election, however, was still being settled in the House of Representatives. The Federalists were considering placing Aaron Burr, Jefferson's Republican vice-presidential running mate, in the presidency instead of Jefferson, and Jefferson and his followers were furious.
If the presidential stalemate was not sufficient to make the Republicans believe the Federalists were trying to steal the government, Chief Justice Oliver Ellsworth offered another reason. After the Federalist defeat in the November 1800 elections became clear, Ellsworth retired so that President Adams would be able to nominate a Federalist to replace him before the Republicans took over. After John Jay turned the post down, in large part because of circuit riding, Adams selected his secretary of state, John Marshall, for the post.
The Judiciary Act passed the House on January 20, 1801, by a partisan 513 margin. It passed the Senate, without amendments, on February 11 by a 161 vote. Adams signed the Judiciary Act into law on February 13, with less than three weeks remaining in his presidency. Four days later the House deadlock on who would be president was broken, and Jefferson was selected.
Jefferson initially believed the Federalist Congress would not pass the Judiciary Act, because the appointment of judges to the new judgeships created by the act would be made by Republicans, who were about to take control of the government. Then Jefferson realized that the Federalists were pushing the bill with the intent of filling the new positions with their own judges before he took office. He was correct. Adams quickly nominated sixteen Federalists, and the Senate confirmed them all.
The politician and diplomat Gouverneur Morris observed that the Federalists were "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship through the storm?" Jefferson's answer was yes. On the eve of the inauguration James Monroe, then governor of Virginia and later to become president, wrote to Jefferson, noting that the Federalist "party has retired into the judiciary, in a strong body where it lives on the treasury, & therefore cannot be starved out. While in possession of that ground it can check the popular current which runs against them, & seize the favorable occasion to promote reaction." In other words, the Federalists had made a power grab by means of the judiciary. Thus Jefferson made repeal of the Judiciary Act his first legislative priority. When the Congress finally convened in December 1801, Jefferson sent a message "urging reconsideration of the [February] 1801 legislation." He privately wrote that "lopping off the parasitical plant engrafted at the last session on the judicial body" was necessary because "from that battery all the works of Republicanism are to be beaten down and erased."
In the congressional debates and in the partisan press, Federalists claimed that repeal of the Judiciary Act was unconstitutional, because the Constitution provided for judges' life tenure (dependent on good behavior). They claimed that repeal was an attack on the independence of the judiciary. Republicans responded that the power to create includes the power to abolish. And since the Constitution provides only for salaries "during their Continuance in Office," stripping them of the office would end the need for payment.
The Repeal Act of 1802 barely passed the Senate but was solidly supported in the House. The votes, 165 and 592, reflected the party makeup in the new Seventh Congress. The National Intelligencer, a Republican publication, exulted: "Judges created for political purposes, and for the worst of purposes under a republican government, for the purpose of opposing the national will, from this day cease to exist." An editorial in the Federalist press lamented the repeal, fearing the worst: "The fatal bill has passed and our Constitution is no more."
Federalists believed that now only the judiciary could save the country from the Republicans, and many were anxious for the constitutional fight. Some Republicans, too, relished a fight, which they believed the unpopular Federalist party could not hope to win. Federalists had frequently warned that the Supreme Court would declare the Repeal Act unconstitutional, but they were wrong. In the case Stuart v. Laird, the Court wrote a three-paragraph opinion that sustained the Repeal Act (although it did not mention it by name) by deciding the case according to its terms. The Court held that circuit riding by Supreme Court justices was so established as to be beyond question and that removing a case from a court created by the 1801 act (and abolished by the Repeal Act) to a court existing under the Judiciary Act of 1789 gave the latter jurisdiction.
Stuart was decided just one week after the famous case Marbury v. Madison and is barely known today. Yet Stuart underscores the genius of Justice Marshall's reasoning in Marbury. In Marbury Marshall's ruling protected and asserted judicial power while simultaneously avoiding a direct challenge to Jefferson. Marbury concerned the ability of the judiciary to order the executive to do something. If the Court had issued an order to James Madison, then secretary of state, to deliver Marbury's commission that entitled him to a position as a justice of the peace, Madison would have refused and the Court would have looked and been impotent because its order would not have been obeyed. The same would have been true in Stuart if the Court had held the Repeal Act unconstitutional. The sixteen judges would have been entitled to their payment, and the Treasury would not have paid them. At this stage in the young republic, executive decisions to ignore judicial rulings could have been fatal to the development of an independent judiciary.
The Court avoided a fight with Jefferson in Marbury by concluding that Congress could not add to the Supreme Court's original jurisdiction. By contrast, Stuart was an attack on the independence of the judiciary, and the constitutional issue was whether life-tenured judges could lose their jobs via the expedient of abolishing their courts. At a glance, the Repeal Act seems more clearly unconstitutional than the provision that added to the original jurisdiction of the Court. But unlike Marbury, Stuart did not hold a statute unconstitutional because that was a fight it could not win. That, too, reflects Marshall's genius.
See also: JUDICIARY ACT OF 1789.
Simon, James F. What Kind of Nation. New York: Simon and Schuster, 2002.
Smith, Jean Edward. John Marshall. New York: Henry Holt and Company, 1996.