Stuart v. Laird and the Judiciary Act of 1801
I want to describe a paradox that I’m writing about in my draft article. Let’s consider two statutes from the early years of the Republic. The first is the Judiciary Act of 1801, which created the infamous “Midnight Judges” of John Adams. The second is the Repeal of that Act in 1802, which was upheld by the Supreme Court in Stuart v. Laird.
Which of these acts is an anti-precedent in modern law? The answer is the first statute. Almost everyone thinks that the Midnight Judges were really inappropriate (though for different reasons). Nonetheless, the Judiciary Act of 1801 and the confirmation process followed for the judges were clearly constitutional. As the phase goes, this was “legal but unconstitutional.”
Now consider the Repeal of the Act. This is a valid precedent because of Stuart v. Laird, but the repeal was almost certainly illegal. Eliminating an Article III judge with a statute by abolishing his or her position completely circumvents the impeachment process. You might be able to square this circle by saying that Congress can give a sitting judge nothing to do so long as he or she still receives a salary, but the Midnight Judges got nothing after their offices were abolished (though they petitioned Congress about this). The repeal was what might be called a “constitutional but illegal” act at the time. (Probably now people would not stand for this sort of office erasure, but that’s hard to say.)
One way to make sense of these examples is through politics. What the Federalists stood for in 1800 was decisively repudiated in that election and in many thereafter. Thus, the 1801 Act is in the ash heap of history and the Repeal had to be upheld because the people were really for it. Stuart v. Laird, then, is a kind of “switch-in-time” case. But you could also say that the Court’s decision to uphold the Repeal of the Judiciary Act of 1801 was a recognition that preserving fair play between the two parties was more important than the actual text of Article III. (Or at least that reading makes sense two centuries later when we think the two-party system is a cornerstone of our democracy.)
Just food for thought.