Politicizing the Federal Courts in Early America

By Mark Boonshoft
February 17, 2016
Stephen A. Schwarzman Building

The Supreme Court is once again front and center in American partisan politics. We often bemoan the recent politicization of the federal courts and especially appointments to the Supreme Court, but this has been a source of political strife since the creation of the federal judiciary. It would not be unreasonable to say that the issue defined domestic politics during Thomas Jefferson’s first term as president. In fact, the judicial politics of the Jeffersonian era help explain why the Supreme Court remains such a charged issue in our own time. As part of the ongoing Early American Manuscripts Project, NYPL has recently cataloged and imaged some important sources that help tell this story. But first, some background.

The Creation of the Federal Judiciary

What will undoubtedly become clear over the coming months is how little the Constitution actually says about the judicial branch. Article III is much skimpier than the Constitution’s first two articles, which define the legislative and executive branches. The Constitution provides that there will be a supreme court, grants Congress power to create “inferior courts,” and declares that judges shall have life tenure, but little else. From the beginning, it was clear that Congress would have significant power to shape the structure of the federal court system.


Jeremiah Wadsworth to Pierpont Edwards, July 26, 1789

The first Congress passed the Judiciary Act of 1789. It established district courts in each state and a six-member Supreme Court. The Act also created three circuit courts—the forerunners to the federal Court of Appeals—that oversaw a number of the district courts. The judicial branch was a politically-volatile issue from the outset. In a letter to Pierpont Edwards—a lawyer, merchant, future U.S. Attorney and federal judge—congressman Jeremiah Wadsworth of Connecticut worried that “the bill for Establishing a Judiciary system will be attacked on all sides.” He also passed on information about whether James Madison, the powerful Virginian, would support the bill. Edwards then received intelligence from Oliver Ellsworth—another well-connected Connecticut lawyer, who served as a senator and the chief justice of the Supreme Court—that Judge Richard Law of Connecticut “thinks favorably of the judiciary system proposed.” Ultimately, the act passed without much fanfare.


Oliver Ellsworth to Pierpont Edwards, August 4, 1789

The Judiciary Act of 1801

Both George Washington and the second president, John Adams, belonged to the Federalist Party. As a consequence, one party had appointed every member of the federal judiciary. Yet the judiciary became a much more charged political issue in 1800, when the Jeffersonian Republican Party won majorities in the House and the Senate. They also won the presidency for the first time--though it took until February of 1801 to decide that Thomas Jefferson would be president, and Aaron Burr his vice president.

At the beginning of Jefferson’s first term as president, Federalists’ strength in national politics was confined entirely to the judiciary. After the elections of 1800, the lame duck Federalist President, House, and Senate had clearly passed the Judiciary Act of 1801 to stack the federal courts with Federalists and entrench their power in the judiciary as a bulwark against the growing political clout of the Jeffersonians. The Act established sixteen new circuit court judgeships, all filled by Federalists. Perhaps most brazenly, it changed the number of Supreme Court justices from six to five, to take effect when the next sitting judge left office. In effect, this meant that two justices would need to retire, die, or be removed from office before the next president would have the chance to make an appointment to the court. The Act also created a number of local justice of the peace for the new District of Columbia, again all filled by Federalists.

Done so late in Adams’s term, the men appointed under this Act came to be known as the “Midnight Judges.” It is an apt moniker. Indeed, the outgoing administration did not even have time to deliver commissions--which made the appointments official--to all the appointees. A lawsuit over these undelivered commissions led to the famous Supreme Court case, Marbury v. Madison (1803), decided by Chief Justice John Marshall, the most influential of Adams’ midnight appointees.

The Jeffersonian Reaction

Federalists feared the Jeffersonians would attempt to undermine the Federalist hold on the judiciary when they took the reins of power in 1801. In a revealing letter to Noah Webster, William Cranch—one of the Midnight Judges, appointed to the D.C. circuit court—bemoaned that the “bolder spirits” among the Jeffersonians wanted to “warp and bend [the Constitution] to their view” by making “the judiciary ... dependant[sic] upon the legislature.” In essence, with “a majority of both houses, and the Executive, on their side,” the Jeffersonians needed to take some control over the judiciary to prevent it from stymieing their legislative agenda.


William Cranch to Noah Webster, December 21, 1801

The Jeffersonians opted to repeal large portions of the Judiciary Act of 1801, including the new system of circuit courts. Though Federal judges held these offices for life, the Jeffersonians claimed they simply eliminated the office itself.

The Jeffersonians were not finished. Led by a contingent from Virginia, they tried to impeach a Supreme Court justice, Samuel Chase. An unabashed Federalist, Chase did not hide his partisanship. As Cranch wrote in another letter to Webster, Chase’s “great crime was in declaring the repeal of the Judiciary Act of 1801 unconstitutional” and a threat to liberty and judicial independence, during a tirade against the Republicans he made from the bench.


William Cranch to Noah Webster, March 3, 1805

The Jeffersonian-dominated Senate, though, voted to acquit. Nevertheless, Cranch maintained that the impeachment proceedings, would offer “the future historian a strong fact to elucidate the spirit of the times, and to estimate the virtue of the majority [Jeffersonians].” But his own experience in the coming years suggests otherwise. In 1806, Jefferson promoted Cranch to chief judge of the D.C. Circuit Court.

The Legacy

The Chase impeachment had revealed cracks within the Jeffersonian Republican Party, between National Republicans, who valued judicial independence, and “Old Republicans” willing to sacrifice it on the altar of politics. Moving forward, the National Republicans would oversee one of the most important eras in the Supreme Court’s history.

The most consequential outcome of the Federalists’ machinations--unaffected by the Jefferson reaction--was the appointment of John Marshall as chief justice of the Supreme Court. In 1803, Marshall issued his most famous decision. Though the implications of the case were not clear at the time, Marbury v. Madison established the principle of judicial review--that the Supreme Court determined the constitutionality of federal laws. Marshall grew increasingly bold during the administrations of James Madison, James Monroe, and John Quincy Adams, offering a string of rulings that continue to shape American jurisprudence today. In the most significant case, McCullouch v. Maryland (1819), Marshall ruled that the Constitution provided Congress with broad authority to pursue its enumerated powers.

To a certain extent, modern American politics turns on differing interpretations of the legitimacy of McCullouch, and the Supreme Court wields significant power over that conversation thanks to Marbury. We might even say that one reason the federal bench is so politicized now, is because of the institutional weight it gained under the leadership of its most politicized appointee, John Marshall.

Further Reading

For more on the judicial politics of the early republic era, see Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971); and Ellis, Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic(New York: Oxford University Press, 2007). The manuscript sources in this post come from the Thomas Addis Emmet Collection and the Noah Webster Papers.

About the Early American Manuscripts Project

With support from the The Polonsky Foundation, The New York Public Library is currently digitizing upwards of 50,000 pages of historic early American manuscript material. The Early American Manuscripts Project will allow students, researchers, and the general public to revisit major political events of the era from new perspectives and to explore currents of everyday social, cultural, and economic life in the colonial, revolutionary, and early national periods. The project will present on-line for the first time high quality facsimiles of key documents from America’s Founding, including the papers of George Washington, Thomas Jefferson, Alexander Hamilton and James Madison. Drawing on the full breadth of the Library’s manuscript collections, it will also make widely available less well-known manuscript sources, including business papers of Atlantic merchants, diaries of people ranging from elite New York women to Christian Indian preachers, and organizational records of voluntary associations and philanthropic organizations. Over the next two years, this trove of manuscript sources, previously available only at the Library, will be made freely available through nypl.org.