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7-07-2015, 04:46

Jefferson's Attack on the Judiciary

Although notably open-minded and tolerant, Jefferson had a few stubborn prejudices. One was against kings, another against the British system of government. A third was against judges, or rather, against entrenched judicial power. While recognizing that judges must have a degree of independence, he feared what he called their “habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power.” The biased behavior of Federalist judges during the trials under the Sedition Act had enormously increased this distrust, and it burst all bounds when the Federalist majority of the dying Congress rammed through the Judiciary Act of 1801.

The Judiciary Act created six new circuit courts, presided over by sixteen new federal judges and a small army of attorneys, marshals, and clerks. The expanding country needed the judges, but with the enthusiastic cooperation of President Adams, the Federalists made shameless use of the opportunity to fill all the new positions with conservative members of their own party. The new appointees were dubbed “midnight justices” because Adams had stayed up until midnight on March 3, his last day as president, feverishly signing their commissions.

The Republicans retaliated as soon as the new Congress met by repealing the Judiciary Act of 1801.

But on taking office Jefferson had discovered that in the confusion of Adams’s last hours, the commissions of a number of justices of the peace for the new District of Columbia had not been distributed. While these were small fry indeed, Jefferson was so angry that he ordered the commissions held up even though they had been signed by Adams.

One of the appointees, William Marbury, then petitioned the Supreme Court for a writ of mandamus (Latin for “we order”) directing the new secretary of state, James Madison, to give him his commission.

The case of Marbury v. Madison (1803) placed Chief Justice John Marshall, one of Adams’s “midnight” appointments, in an embarrassing position. Marbury had a strong claim; if Marshall refused to order Madison to give Marbury the job, everyone would say Marshall dared not stand up to Jefferson, and the prestige of the Court would suffer. If he ordered that Marbury be seated, however, he would place the Court in direct conflict with the President. Jefferson particularly disliked Marshall. He would probably tell Madison to ignore the order, and in the prevailing state of public opinion nothing could be done about it. This would be a still more staggering blow to the judiciary. If its decisions were ignored, would the Supreme Court have any purpose?

Marshall had studied law only briefly and had no previous judicial experience, but in this crisis he first displayed the genius that was to mark him as a great judge. By right Marbury should have his commission, Marshall announced. However, the Court could not require Madison to give it to him. Marbury’s request for a court order had been based on an ambiguous clause in the Judiciary Act of 1789. That clause was unconstitutional, Marshall declared, and therefore void. Congress could not legally give the Supreme Court the right to issue such orders.

With the skill and foresight of a chess grand master, Marshall turned what had looked like a trap into a triumph. By sacrificing the pawn, Marbury, he established the power of the Supreme Court to invalidate federal laws that conflicted with the Constitution. Jefferson could not check him because Marshall had refused power instead of throwing an anchor ahead, as Jefferson had feared. Yet he had certainly grappled a “further hold for future advances of power,” and the president could do nothing to stop him.

The Marbury case made Jefferson more determined to strike at the Federalist-dominated courts. He decided to press for the impeachment of some of the more partisan judges. First he had the House Of Representatives bring charges against District Judge John Pickering. Pickering was clearly deranged—he had frequently delivered profane and drunken harangues from the bench—and the Senate quickly voted to remove him. Then Jefferson went after a much larger fish, Samuel Chase, associate justice of the Supreme Court.

Chase had been prominent for decades, an early leader of the Sons of Liberty, a signer of the Declaration of Independence, and active in the affairs of the Continental Congress. Washington had named him to the Supreme Court in 1796, and he had delivered a number of important opinions. But his handling of cases under the Sedition Act had been outrageously high-handed. Defense lawyers had become so exasperated as to throw down their briefs in disgust at some of his prejudiced rulings. However, the trial demonstrated that Chase’s actions had not constituted the “high crimes and misdemeanors” required by the Constitution to remove a judge. Even Jefferson became disenchanted with the efforts of some of his more extreme followers and accepted Chase’s acquittal with equanimity.

•••-[Read the Document Opinion of the Supreme Court for Marbury v. Madison at myhistorylab. com