Marbury V. Madison -The Case of the “Missing” Commissions

It was the evening of March 3, 1801, his last day in office, and President John Adams was in a black and bitter mood. Assailed by his enemies, betrayed by some of his most trusted friends, he and his Federalist party had gone down to defeat the previous November before the forces of Thomas Jefferson. His world seemed to have crumbled about his doughty shoulders.

Conservatives of Adams’ persuasion were deeply convinced that Thomas Jefferson was a dangerous radical. He would, they thought, in the name of individual liberty and states’ rights, import the worst excesses of the French Revolution, undermine the very foundations of American society, and bring the proud edifice of the national government, so laboriously erected under Washington and Adams, tumbling to the ground. Jefferson was a “visionary,” Chief Justice Oliver Ellsworth had said. With him as President, “there would be no national energy.” Ardent believers in a powerful central government like Secretary of State John Marshall feared that Jefferson would “sap the fundamental principles of government.” Others went so far as to call him a “howling atheist.”


Adams himself was not quite so disturbed as some, but he was deeply troubled. “What course is it we steer?” he had written despairingly to an old friend after the election. “To what harbor are we bound?” Now on the morrow Jefferson was to be inaugurated, and Adams was so disgruntled that he was unwilling to remain for the ceremonies, the first to be held in the new capital on the Potomac. At the moment, however, John Adams was still President of the United Slates, and not yet ready to abandon what he called “all virtuous exertion” in the pursuit of his duty. Sitting at his desk in the damp, drafty, still-unfinished sandstone mansion soon to be known as “the White House,” he was writing his name on official papers in his large, quavering hand.

The documents he was signing were mostly commissions formally appointing various staunch Federalists to positions in the national judiciary, but the President did not consider his actions routine. On the contrary: he believed he was saving the republic itself. Jefferson was to be President and his Democratic-Republicans would control the Congress, but the courts, thank goodness, would be beyond his control. As soon as the extent of Jefferson’s triumph was known, Adams had determined to make the judiciary a stronghold of Federalism. Responding enthusiastically to his request for expansion of the courts, the lame-duck Congress had established sixteen new circuit judgeships (and a host of marshals, attorneys, and clerks as well). It had also given Adams blanket authority to create as many justices of the peace for the new District of Columbia as he saw fit, and—to postpone the evil day when Jefferson would be able to put one of his sympathizers on the Supreme Courtit provided that when the next vacancy occurred, it should not be filled, thus reducing the Court from six justices to five. (The Constitution says nothing about the number of justices on the Court; its size is left to Congress. Originally six, the membership was enlarged to seven in 1807. The justices first numbered nine in 1837. Briefly during the Civil War the bench held ten; the number was set at seven again in 1866 and in 1869 returned to nine, where it has remained.)

In this same period between the election and the inauguration of the new President, Chief Justice Ellsworth, who was old and feeble, had resigned, and Adams had replaced him with Secretary of State Marshall. John Marshall was primarily a soldier and politician; he knew relatively little of the law. But he had a powerful mind, and, as Adams reflected, his “reading of the science” was “fresh in his head.” He was also but forty-five years of age, and vigorous. Clearly a long life lay ahead of him, and a more forceful opponent of Jeftersonian principles would have been hard to find.

Marshall had been confirmed by the Senate on January 27, and without resigning as Secretary of State he had begun at once to help Adams strengthen the judicial branch of the government. They had worked rapidly, for time was short. The new courts were authorized by Congress on February 13; within two weeks Adams had submitted a full slate of officials for confirmation by the Senate. The new justices of the peace for the District of Columbia were authorized on February 27; within three days Adams had submitted for confirmation the names of no less than forty-two justices for the sparsely populated region. The Federalist Senate had done its part nobly, pushing through the various confirmations with great dispatch. Now, in the lamplight of his last night in Washington, John Adams was affixing his signature to the commissions of these “midnight justices,” as the last-minute appointees were to become derisively known.