Midnight Judges And Jefferson’s Battle Over The Federal Courts

by Michael Liss

“Declaration of Independence,” John Trumbull. Capitol Rotunda.

November 1800. In the Presidential rematch between John Adams and Thomas Jefferson we have a clear loser, but not yet a winner. John Adams will be returning home. Thomas Jefferson, thanks to a bizarre tie in the Electoral College with his erstwhile running mate, Aaron Burr, will have to wait for the House of Representatives. Whatever that result might be, it is clear that a new team is coming to Washington. Jefferson’s Democratic-Republicans have flipped the House and have narrowed the gap in the Senate. Over the course of the next few months, thanks to by-elections, three more Federalist Senators will go down, and Jefferson’s party will control both the Executive and Legislative branches.

It’s fair to say that many Federalists are in a panic. Through Washington’s two terms and Adams’ first, being in power is the only thing they have known. It was so easy in the beginning, given Washington’s enormous personal prestige. Then, because people will talk, and there were more ambitious and talented men than there were positions to fill, the grumbling set in. It took just three years from Washington’s 1789 inauguration for Madison’s (and, sotto voce Jefferson’s) new political party to emerge, and, although the Democratic-Republican team did not contest the Presidency against Washington in 1792, it was part of a loose Anti-Administration coalition that won the House.

The grumbling increased in Washington’s Second Term, first directed at his Cabinet, particularly Alexander Hamilton, then, respectfully, of course, at Washington himself. A great man, yes, it was whispered, but in decline and controlled by his advisors. Among the whisperers was Washington’s own Secretary of State, Thomas Jefferson, who left the Administration at the end of 1793 to return to Virginia and do what Jefferson did exceptionally well—ponder, and quietly, oh so quietly, move political chess pieces around on the board.

The Federalists’ reign was not over: in 1796, enough people thought John Adams had earned a stint in the hot seat, and, by the narrowest of margins and with the help of the House of Representatives, Adams held the office for the party.  Still, the balance of power was inevitably shifting away from the Federalists. The Party was basically “aging early,” becoming stiff, cranky, lacking in new ideas.

One of the signs of decay in a political movement is when it loses the capacity for self-reflection. Its adherents come to believe in their own myth of indispensability, of a right to command. In a political system grounded in consent of the governed, the Federalists, more and more, saw the ratification of the Constitution as that one-time, irrevocable consent. No other alternative was viable for the new nation, because, as the historians Stanley Elkins and Eric McKitrick observed in their “The Age of Federalism”: there was “a profound anxiety over whether the right sort of men—men of enlightenment and virtue—would be chosen to occupy the seats of responsibility in the republic’s new government.” Federalists, particularly High Federalists, thought they were the right sort of men.

That, many Federalists seemed to think, was enough. Unfortunately for them, a growing number of voters disagreed. In a new system, barely a decade old, voters did not necessarily understand every nuance of government, but they surely didn’t think they had supported a revolution simply to swap rulers. As their frustrations grew, so did their numbers, and their willingness to exercise their Constitutional rights, particularly the First Amendment.

The roar of the rabble infuriated (and frightened) the Federalists, and, still in charge, but lashed to the mast of a ship taking on water, they decided to do something about it. In 1798, they passed, and John Adams (reluctantly) signed, what are commonly known as the Alien and Sedition Acts.

These four Acts, taken together, all had controversial political aspects to them, but it was the Sedition Act that bears the most opprobrium. Suddenly, in America, it became a crime to utter or publish

any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.

Let’s face it. Much of what one side might claim to be “scandalous and malicious” looks a lot like garden-variety political speech, the kind of speech that is essential to political discourse. Without it, you can’t really have a functioning two-party system or a press that is free to report or editorialize without the threat of prison.

Of course, that was the point. The High Federalists who drove the passing of the four Acts didn’t really believe in a two-party system where the other party was free to criticize. Now they had a tool to keep people in line, and they intended to use it. More than a dozen prosecutions were brought under the Sedition Act, many aimed at publishers or editors of Democratic-Republican newspapers who wrote “false, scandalous and malicious” things about Federalists. This would have taken on an air of silliness, if it hadn’t been so serious and carried out in such a destructive way. Compounding this, just about every single prosecution suffered from a deaf political ear, a contempt for due process, and a complete lack of skill. The public reacted by thinking of the accused as martyrs and the Federalists as petty and vindictive.

The electorate was ready for a change and voted that way. The Federalists were not. Quickly, they began to calculate what “change” meant to them personally—surely it couldn’t be a loss of appointed and patronage positions? There was also the small matter of the country’s future: since the Democratic-Republican Party consisted of seditious, wrong-headed people, who would protect our sacred ideals from those who were less sacred?

These two imperatives, were, in the minds of many Federalists, what the lame-duck session of Congress was for (along with selecting a President). They thought they saw an opportunity to leverage Burr’s “tie” with Jefferson (before the 12th Amendment, Electors voted for President, but not Vice President—the person who gained the second most Electoral Votes would be Vice-President). Would Mr. Burr grant a few concessions in return for the Electoral Votes? Burr flirted with the idea, but did not consummate the relationship.

In one very meaningful way, the Federalists did show they could walk and chew gum at the same time. Four days before the House chose Jefferson as the next President, Congress passed the Judiciary Act of 1801. In it, the Federalists both addressed a critical organizational and staffing problem in the federal Judiciary and found a bulwark against the Jacobite Democratic-Republicans. This Act, also colloquially called the “Midnight Judges Act,” substantially reformed the Judiciary, reorganizing the Circuits, creating 16 more federal judgeships, and…reducing the number of Supreme Court Justices from six to five upon the next vacancy (meaning, during Jefferson’s term).

Filling those new federal judgeships fell to the incumbent President, John Adams, who, in the last few days of his term, found a new vigor and went at it with commitment. The public may have voted for a change in government, but the Midnight Judges (along with a Federalist majority on the Supreme Court) would save them all from their foolishness.

There was little doubt that the Judiciary Act was needed, but, understandably, Jefferson and his party were incensed by the timing, and the prospect of a phalanx of Federalist judges standing athwart history, yelling “Stop!”

Ah, but what to do about it? Jefferson had given that wonderful, quotable (“we are all Federalists, we are all Republicans”) nod to conciliation in his Inaugural Address, but could see plainly that the highwater mark of a party’s unity and his influence over it came on Election Day. He had to look to party-building, and that could not be accomplished without some serious patronage. Through the spring and summer of 1801, he found ways to backtrack from conciliation. With regard to the Judiciary, he had stopped as many of the Midnight commissions from Adams as he could (William Marbury’s being one of them), but had not gone after the 1801 Act itself.

The Midnight Judges were a problem. Given that, for 12 years, the Judiciary had been stocked by Washington and Adams, pretty much all federal judges were Federalists, or, at the very least, moderate Republicans. Jefferson’s party wanted him to do something about that—the more radical among them hoped to end lifetime tenure to fill seats with good Republicans.

Jefferson moved slowly, but eventually he moved, angered by the December 1801 lawsuit brought by four Justices of the Peace for the District of Columbia, including William Marbury, for a writ of mandamus to compel Jefferson to deliver their Midnight commissions. As SCOTUS (under its Chief Justice, John Marshall) scheduled hearings, grave new issues entered the discussion. Critical questions about checks and balances and the role of the three branches of government were going to be addressed.

Jefferson called for repeal of the Judiciary Act of 1801 in his Annual Message, and one of his key allies, Senator John Breckinridge of Kentucky, raised the question in the Senate on January 4, 1802. The Senate (barely) passed repeal after vigorous debate on February 13. The House followed on March 3. The Midnight Judges Act was history. For most of the newly appointed Circuit Court judges, July 1, 1802 was their last day of service.

In an ideal world, the fight over the Judiciary would then have been given less urgency, and perhaps it might have, but for two intervening factors: the Supreme Court’s decision on February 24, 1803, in Marbury v. Madison, establishing the primacy of the federal courts to determine what the Constitution meant, and the continued resistance of some Federalist judges to find ways to be more accommodating of Jefferson and his party.

One man in particular, Supreme Court Justice Samuel Chase, was the very antithesis of accommodative, and he was to become the primary target of Republican ire.

Who was Samuel Chase? To start with, a very serious person and an actual “Founder”—in the top image of John Trumbull’s “Declaration of Independence,” he’s the tall man in a black coat with the dark hair, standing second from the left. He was also a royal (in a democratic sort of way) pain—difficult, irascible, convinced of his own specialness, and often intemperate in speech. As a younger man, he had been expelled from an Annapolis debating society and had made plenty of enemies when he was in the Maryland General Assembly. Still, he had been talented enough to become one of the foremost attorneys in Maryland, and, in 1791, he became Chief Justice of the Maryland General Court. On January 26, 1796, he was appointed by George Washington to be an Associate Supreme Court Justice, and was promptly confirmed by the Senate, despite some doubts about his temperament.

Chase had been an ardent Federalist since the time of the ratification of the Constitution, but was not particularly political in his early years on SCOTUS. His approach to his work was considered thoughtful and well-reasoned. Something changed in him in the late 1790s, quite possibly because of the intense and often personal Republican attacks on Adams and his Administration.

Chase became openly, even stridently, partisan on his “Circuit ride” in 1800. In those days, Justices of the Supreme Court literally rode from venue to venue, presiding over cases. This Circuit ride had several high-profile Sedition Act cases, including the trial of Thomas Cooper, editor of a rural Pennsylvania newspaper, the sedition trial of James Callender, and the treason trial of John Fries. In each, Chase acted in a manner leaving no doubt where his political sympathies lay.

The ascendance of Thomas Jefferson did not moderate Chase’s style—in fact, it may have intensified it. By 1801, according to the historian Richard Ellis, “Chase had made himself the most hated member of the Federal Judiciary.”

Jefferson, still clinging to the expansive poetry of conciliation with one hand, while deftly working the prose of governance with the other, made the tactical decision to have repeal of the Judiciary Act of 1801 his “signature” effort at bringing the Judiciary in line. The accommodative policy had largely worked, and the animosity level between his Administration and Federalist judges declined significantly. Notably, although Chase had been a target of Republican newspapers and the more radical Republicans, Jefferson maintained a hands-off policy. Perhaps this was just political shrewdness—Chase alienated almost everyone, including moderate Federalists.

He was about to alienate more: On May 2, 1803, following a string of incidents in which Chase went too far, he really went too far. He publicly attacked the repeal of the Judiciary Act of 1801 in issuing a charge to a Grand Jury in Baltimore. “The independence of the national judiciary is already shaken to its foundation.” “Repeal,” he said “will take away all security for property and personal liberty…. and our Republican constitution will sink into a mobocracy, the worst of all popular governments.”

Jefferson, to use the vernacular, wasn’t in the mood, especially after his Pyrrhic “victory” in Marbury. He quietly “suggested” to a Maryland Congressman, Joseph Hopper Nicholson, that perhaps now would be an excellent time to look at Chase’s “seditionist and official attack on the principles of our Constitution.”

The choice of Nicholson as Jefferson’s audience was no random selection—Nicholson had been an impeachment manager in the tragic case of John Pickering, a federal judge who had descended into madness and alcoholism.

Samuel Chase had finally gone too far for Thomas Jefferson. Jefferson, privately, quietly, and without attribution, was about to go a lot farther with Samuel Chase.

Next month, the Impeachment of a Supreme Court Judge.