Folding to Save Judicial Independence

One of the emerging themes in my research on Bushrod Washington is that the Marshall Court should be understood as a team rather than as the extension of one genius. Proving that thesis is difficult, because we know relatively little about how the Court reached its decisions in that era. In some instances, though, written evidence exists that makes the point. Here is an example that is not new, but gets less attention than it should.

When Congress repealed the Judiciary Act of 1801, serious constitutional questions were raised about the manner in which that repeal occurred. Specifically, the Article III judges confirmed in the waning days of the Adams Administration were now no longer judges and no longer got paid. This struck many as unlawful given that Article III judges were supposed to have life tenure.

John Marshall responded by floating the idea to his colleagues that they should refuse to resume circuit riding (as mandated by the repeal of the Act) and, in essence, go on strike in protest. To do otherwise would be to concede that Congress had acted lawfully. A strike by the Justices would have been a provocative and (in the political climate of the day) probably a foolhardy gesture that might have led to direct attacks on the Supreme Court itself.

Some of the Justices supported a strike (most notably Samuel Chase) but the first to say no was (you guessed it) Bushrod Washington. He explained in a letter to Marshall (that the Chief Justice talked about in a letter on his own) that he felt the constitutionality of circuit riding was settled by its use prior to 1801 and planned to resume circuit duty. Though Marshall continued to press the idea, he ultimately dropped the plan after Justice Paterson indicated that he sided with Washington.

What does this episode tell us? First, John Marshall was not infallible. Second, the Court did not follow Marshall as if he were the Pied Piper. Now one could argue that in this instance Marshall could not exercise his personal charm to persuade his colleagues, which may have made a difference.

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1 Response

  1. Joe says:

    This issue soon arose in Stuart v. Laird and “MR. CHIEF JUSTICE Marshall having tried the cause in the court below, declined giving an opinion. MR. JUSTICE PATERSON delivered the opinion of the Court.”

    The brief opinion noted it was “sufficient to observe that practice and acquiescence under it for a period of several years” though it did help that the practice started from the very organization of the judicial system. “This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed.” That is, in under fifteen years.

    A book review over at Balkinization (where the author also blogs) cites an argument that “Over the course of the 1790s” the Constitution became “an authoritative text circumscribed in historical time.” Of course, different parties interpreted the times differently.

    This extended period of birth, however, didn’t freeze in the 1790s. Later constitutional developments became accepted in and outside the courts as well because of long practice and acquiescence. Analyzing first principles alone was not how the Constitution was applied.