Early threats to federal judicial independence

After the bitterly fought election campaign of 1800 between John Adams and Thomas Jefferson, Jefferson set about to dismantle what was left of the Federalist Party as some of his first executive actions.

At this time, the federal judiciary was very fragile and was staffed almost exclusively by Federalists. Even the office of chief justice of the United States was so wanting in stature that few were interested in the post. There were arguably four chief justices before John Marshall. The first, John Jay, served from October 19, 1789 to June 29, 1795, but left to become governor of New York. John Rutledge was a recess appointment, but was never confirmed by the Senate, and served less than six months. William Cushing served for two days, and historians disagree whether he declined the office or resigned. Oliver Ellsworth served for about four years before resigning to lead a diplomatic mission to France. John Marshall became chief justice in 1801, and served for 34 years.

In February 1801, after being defeated by the Republicans and Jefferson, the outgoing Federalists in Congress passed the Judiciary Act of 1801, designed to prolong their hold on the federal judiciary for years after they left power. It (a) reduced the number of seats on the Supreme Court from six to five, effective upon the first vacancy on the court; (b) eliminated the obligation of the Supreme Court justices to ride the circuit; (c) doubled the number of circuit courts from three to six and increased the number of judges in each circuit by three (except in the 6th Circuit); (d) reorganized and increased the number of district courts by 10; and (e) abolished some of the former circuit courts.

In the 19 days between the passage of the act and the conclusion of his administration, President Adams quickly filled as many of the newly created judgeships as possible. These "midnight judges," of which Marbury, of Marbury v. Madison fame, was one, did not last long. Of interest, John Marshall was President Adam's secretary of state and signed Marbury's commission, but the president's private secretary was so swamped with last-minute business that he did not get around to delivering the commission to Marbury.

In his first address to Congress, Jefferson spoke of the need to economize and specifically focused on the fact that were too many judges and not enough judicial business. Behind the scenes he sought the immediate repeal of the Judiciary Act of 1801, even though these judges had been nominated by the president and approved by the Senate. When the Republicans took over Congress, one of their first acts (the Judiciary Act of 1802) was to repeal the Judiciary Act of 1801. In doing so, Senator John Breckinridge cited Article III of the Constitution, which provided that Congress alone had the authority to establish, and presumably to abolish, inferior federal courts. If his interpretation was wrong, Breckinridge noted with satisfaction, then the Judiciary Act of 1801 itself, which abolished the former circuit courts, was also unconstitutional.

The Federalists countered that the repeal would undermine the independence of the federal judiciary, making judges mere pawns of the executive and legislative branches. They argued that, once confirmed, federal judges could be removed only by impeachment. Because of strong objections from moderate Republicans and some absences, the bill resulted in a 15-15 tie in the Senate, but Vice President Aaron Burr voted against the measure, and sent it back to committee. However, when a previously absent Republican senator (whose wife had been ill) returned, the bill was released from the committee to which it had been assigned upon Burr's vote, and the resubmitted bill was approved by a 16-15 vote. The bill passed handily in the House and was signed by Jefferson.

Out of concern that Federalists would attack the repeal legislation in the courts, the Republican-controlled legislature enacted legislation assigning all circuit judge duties that remained to the Supreme Court, and abolishing the June and December terms of the Supreme Court.

In the meantime, a number of Federalist judges planned passive resistance by refusing to follow the repeal law. Marshall was greatly concerned about losing the judiciary in its entirety if the judiciary was perceived as defying a duly enacted congressional statute. Despite Marshall's success with his Supreme Court colleagues, other Federalists sought to challenge the new law in a case called Stuart v. Laird. Charles Lee represented John Laird, who in December 1801 had obtained a property judgment in a circuit court established by the Judiciary Act of 1801. But the repeal act abolished that circuit court. Lee, on Laird's behalf, insisted that his client's judgment was still valid and prevented appeal to Marshall's new circuit court. Lee claimed that the repeal legislation was unconstitutional and, consequently, Chief Justice Marshall and the other justices could not be required to sit as circuit judges. Marshall dismissed both of Lee's arguments, but ordered that the judgment in favor of Laird be executed. Lee appealed to the Supreme Court, but that appeal also failed. See 5 U.S. (1 Cranch) 299 (1803). Marshall did not take part in the Supreme Court's consideration of the Stuart v. Laird case. Writing for the court, Justice William Paterson commented "Congress have constitutional authority to establish from time to time such inferior tribunals as they may think proper; and to transfer a cause from one such tribunal to another. In this last particular there are no words in the constitution to prohibit or restrain the exercise of legislative power." Id. at 309.

Desirous of attacking the last bastion of Federalist Party holdovers, Jefferson inspired the impeachment of New Hampshire District Judge John Pickering. It was widely understood that Pickering was both an alcoholic, and by then insane. However, Republicans sought his removal only on grounds of alcoholism. In the Senate, no one even represented Pickering, and he was convicted.

More seriously, on the day Pickering was convicted in the Senate, Supreme Court Justice Samuel Chase was impeached in the House. This was clearly initiated by Jefferson. Chase had openly challenged Jefferson's initiated repeal of the Judiciary Act of 1801, and openly criticized the president in his charge to a federal grand jury. Jefferson, in a letter to a house leader said "ought the seditious and official attack on the principles of our constitution and of a state to go unpunished?" Chase was ferocious in appearance, over six feet tall, and had a massive head with a thick mane of hair and an auburn complexion, which earned him the nickname of "old bacon face." He was considered a highly competent judge.

Some in the House wondered whether political opinions expressed by judges were grounds for impeachment. The actual articles of impeachment focused primarily on Chase's judicial actions in trying Sedition Act cases and some of his partisan instructions to federal grand juries, but all fell within the realm of his judicial duties.

The net effect was a claim that a justice or judge who committed technical errors of judgment could be removed by the same impeachment method as one guilty of treason, bribery, or other high crimes and misdemeanors. Commenting on the articles of impeachment, the New York Evening Post stated: "Here is the mighty crime, here is the high misdemeanor. The bench in short is to be cleared of its present incumbents, no matter by what means, and filled with men subservient to the views of the powers that be ... at the expense of all that renders a court of justice respectable."

The best lawyers in the Federalist bar were solicited to defend Chase in the Senate. Chief Justice Marshall was so concerned about the prospect of a member of the Supreme Court being removed from office because of his judicial opinions that he suggested to Chase and others that controversial rulings could best be taken care of by the legislature acting in the capacity of an appellate court, thereby bypassing an impeachment entirely. "I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature," Marshall wrote Chase. "A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the judge who has rendered them unknowing of his fault."

Fortunately for the independence of the judiciary, the political winds promptly began to blow the other way. John Randolph (who should have been building a consensus among radical and moderate Republicans for his impeachment drive) irrevocably split with Jefferson concerning a proposed land settlement known as Yazoo in Indian Territory in Georgia. Randolph denounced the Jefferson administration's siding with corrupt land speculators, with whom some scholars suggest Jefferson may have been a silent partner. At the time of the trial, Burr (who presided at the impeachment trial in his role as vice president, even though he had been dumped in favor of George Clinton in Jefferson's second term) had been indicted in both New York and New Jersey for the murder of Alexander Hamilton. Wags said that usually "it was the practice in courts of justice to arraign the murderer before the judge, but now we behold the judge arraigned before the murderer."

It is fair to say that Burr governed the proceeding fairly, and Luther Martin (one of the best trial lawyers of the day) spoke eloquently of the independence of the federal judiciary, saying "our property, our liberty, our lives can only be protected and secured by such independent judges. With this honorable court (the Senate) it remains, whether we shall have such judges!" A bedridden, old Federalist senator was carried into the Senate chamber and one by one the senators began voting. Gradually, several moderate Republican senators also intoned "not guilty." All nine Federalist senators voted not guilty on each of the eight articles of impeachment, and six Republican senators joined them each time.

Had Chase been impeached, moderates in both parties would have realized that there is no limit to prosecutions of unpopular judges. After Chase's impeachment failed, Jefferson remarked in later years that impeachment of judges is "a mere scarecrow."

We owe much to the senators who voted to acquit Chase. We are also fortunate that most people have forgotten that Article III judges were unceremoniously removed from office and that the Supreme Court countenanced that removal, probably in order to save any aspect of judicial independence.