Whacking away at the judiciary

This interesting piece in the NY Times by historian Ron Chernow on the handling of the judiciary in the early years of the U.S. opines that "we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president."

It recites that the lame-duck Federalists, on their way out in 1801, created new federal circuit court judgeships, just as they named a bunch of federal judges and magistrates (including Chief Justice Marshall and the unlucky William Marbury), after they lost the 1800 election to Thomas Jefferson.

Jefferson's party responded by repealing the Federalists' Judiciary Act in 1802, eliminating the circuit court positions, which made it necessary for the Supreme Court justices to ride circuit once again. They also cancelled two sessions of the Supreme Court. As Chief Justice Rehnquist explained in his book, "Congress at the same time passed a law abolishing the June and December terms of the Supreme Court, which had been created by act of 1801, and restoring the old Rebruary term but not the old August term. By dint of this rather extraordinary measure, enacted with ill-disguised hostility toward the Supreme Court, an adjournment of that body was enforced for fourteen months - from December 1801 to February 1803." The Supreme Court (2001) at 28.

Thus, the case of Marbury, whose commission for a judicial position was not delivered before time ran out, was not decided by the Supreme Court until 1803, when Marshall wrote his famous opinion, the "twistifications" of which Jefferson denounced. The Marbury case is full of irony. Marshall himself was a midnight judge like Marbury would have been. Rather than issuing a writ of mandamus, which the Jefferson administration would have ignored, the Court enhanced its power by declaring the statute for authorizing issuance of the writ was unconstitutional.

The Jeffersonians went on to impeach two federal judges, convicting one.

This analysis provides a new answer to the question, what do Pat Robertson and Thomas Jefferson have in common besides Virginia residence? Previously, I would have thought the answer was: nothing.