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


For some time thereafter Jefferson did very little about the way Adams had packed the judiciary. Indeed, despite his much-critici/.ed remark that office holders seldom die and never resign, he dismissed relatively few persons from the government service. For example, the State Department clerks, Wagner and Brent, were permitted to keep their jobs. The new President learned quickly how hard it was to institute basic changes in a going organization. “The great machine of society” could not easily be moved, he admitted, adding that it was impossible “to advance the notions of a whole people suddenly to ideal right.” Soon some of his more impatient supporters, like John Randolph of Roanoke, were grumbling about the President’s moderation.

But Jefferson was merely billing his time. Within a month of the inauguration he conferred with Madison at Monticello and made the basic decision to try to abolish the new system of circuit courts. Aside from removing the newly appointed marshals and attorneys, who served at the pleasure of the Chief Executive, little could be done until the new Congress met in December. Then, however, he struck. In his first annual message he urged the “contemplation” by Congress of the Judiciary Act of 1801. To direct the lawmakers’ thinking, he submitted a statistical report showing how few cases the federal courts had been called upon to deal with since 1789. In January, 1802, a repeal bill was introduced; after long debate it passed early in March, thus abolishing the jobs of the new circuit judges.


Some of those deposed petitioned Congress for “relief,” but their plea was coldly rejected. Since these men had been appointed for life, the Federalists claimed that the repeal act was unconstitutional, but to prevent the Supreme Court from quickly so declaring, Congress passed another bill abolishing the June term of the Court and setting the second Monday of February, 1803, for its next session. By that time, the Jeffersonians reasoned, the old system would be dead beyond resurrection.

This powerful assault on the courts thoroughly alarmed the conservative Federalists; to them the foundations of stable government seemed threatened if the “independence” of the judiciary could be thus destroyed. No one was more disturbed than the new Chief Justice, John Marshall, nor was anyone better equipped by temperament and intellect to resist it. Headstrong but shrewd, contemptuous of detail and of abstractions but a powerful logician, he detested Jefferson (to whom he was distantly related), and the President fully returned his dislike.

In the developing conflict Marshall operated at a disadvantage that in modern times a Chief Justice would not have to face. The Supreme Court had none of the prestige and little of the accepted authority it now possesses. Few cases had come before it, and few of these were of any great importance. Before appointing Marshall, Adams had offered the Chief Justiceship to John Jay, the first man to hold the post, as an appointee of President Washington. Jay had resigned from the Court in 1795 to become governor of New York. He refused the reappointment, saying that the Court lacked “energy, weight, and dignity.” A prominent newspaper of the day referred to the Chief Justiceship, with considerable truth, as a “sinecure.” One of the reasons Marshall had accepted the post was his belief that it would afford him ample leisure for writing the biography of his hero, George Washington. Indeed, in the grandiose plans for the new capital, no thought had been given to housing the Supreme Court, so that when Marshall took office in 1801 the justices had to meet in the office of the clerk of the Senate, a small room on the first floor of what is now the north wing of the Capitol.

Nevertheless, Marshall struck out at every opportunity against the power and authority of the new President; but the opportunities were pitifully few. In one case, he refused to allow a presidential message to be read into the record on the ground that this would bring the President into the Court, in violation of the principle of separation of powers. In another, he ruled that Jefferson’s decision in a prize case involving an American privateer was illegal. But these were matters of small importance.

When he tried to move more boldly, his colleagues would not sustain him. He was ready to declare the judicial repeal act unconstitutional, but none of the deposed circuit court judges would bring a case to court. Marshall also tried to persuade his associates that it was unconstitutional for Supreme Court justices to ride the circuit, as they were forced again to do by the abolishment of the lower courts. But although they agreed with his legal reasoning, they refused to go along—because, they said, years of acquiescence in the practice lent sanction to the old law requiring it. Thus frustrated, Marshall was eager for any chance to attack his enemy, and when a case that was to be known as Marbury v. Madison came before the Court in December, 1801, he took it up with gusto.