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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

J, Judiciary Acts of 1801 and 1802.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 June 2020

Judiciary Acts of 1801 and 1802.

Ratification of the Constitution provoked debate and conflict concerning the relationship of the federal judiciary to other branches of the national government and to the states. In 1799, the Federalists began efforts to expand both the organization and the jurisdiction of the national courts created by the *Judiciary Act of 1789. Before the Jeffersonian Republicans took office following their electoral triumph in 1800, the Federalist Congress passed the Judiciary Act of 1801.

The act responded both to complaints from Supreme Court justices and to those who sought a more centralized national government. It abolished the existing circuit courts and thereby freed Supreme Court justices from their duties as circuit judges (see circuit riding). It reduced the number of Supreme Court justices from six to five (following the next vacancy) and created six new circuits, thereby enabling the outgoing Adams administration to appoint sixteen circuit judges, the so-called midnight judges. The scope of federal jurisdiction was radically increased. The 1801 act gave the circuit courts the *federal question jurisdiction that had been withheld in the 1789 act. It broadened diversity jurisdiction and expanded the removal jurisdiction. The act extended federal jurisdiction over all cases in which state-derived land titles were disputed, regardless of the value of the lands in question, and gave the circuit courts exclusive jurisdiction over litigation under the recent Bankruptcy Act of 1800 (see bankruptcy and insolvency legislation). The nationalizing potential of these provisions struck deeply at the powers of the states (see state sovereignty and states’ rights). Because of the partisan support for the act and the appointment of Federalists to the new judgeships, the Republicans demanded its repeal as soon as they took control of Congress. The outgoing Congress also created new justices of the peace for the District of Columbia. In December 1801 four of them who had not actually received their commissions sought a writ of *mandamus from the Supreme Court in its original jurisdiction directing Secretary of State James *Madison to deliver their commissions, producing the landmark decision of *Marbury v. Madison (1803).

(p. 547) Extensive congressional debate in 1802 over repeal of the 1801 act raised many constitutional issues. Federalists maintained that abolishing the new federal courts constituted an unconstitutional attack on the independence of the judiciary. Republicans countered that because the Constitution gave Congress the power to establish inferior courts, it could abolish them. Federalists predicted that if the repeal bill passed, the Supreme Court would declare it unconstitutional. They insisted that *judicial review of acts of Congress by the Supreme Court was legitimate. Republicans did not agree that the judiciary could control the other departments of government; each department was free to interpret the Constitution as it saw fit. The ultimate check upon acts of Congress, Republicans asserted, was by the people themselves, through their elected legislators, state or federal, not through an appointed judiciary with tenure during good behavior. The Repeal Act, passed 8 March 1802, restored the former judicial system. Because the June 1802 term of the Supreme Court provided an opportunity for decisions on the constitutionality of the repeal as well as on the Marbury case, Congress also enacted the Judiciary Act of 1802, which postponed the Court’s next term until February 1803. Efforts of the deposed circuit judges to retain their offices proved fruitless.

Despite the repeal of the Judiciary Act of 1801 and the passage of the 1802 act, the federal judiciary remained fundamentally unaltered. The full jurisdiction authorized by the Constitution in federal question cases was not realized until 1875 (see removal act of 1875). The profound constitutional questions embedded in the 1801–1802 debate were resolved by the Supreme Court in Marbury and in *Stuart v. Laird (1803), holding the 1802 repealer statute constitutional. But debates over the legitimacy of judicial review in a democratic society have continued into modern times.

See also circuit courts of appeals; judicial power and jurisdiction.

Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the New Republic (1974). Kathryn Turner, “Federalist Policy and the Judiciary Act of 1801,” William and Mary Quarterly 22 (January 1965): 3–32.

Kathryn Preyer