John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 9

vs. United States, 3 Dallas, 171.
The great lack of the Federal Judiciary during these early years, and it
eventually proved well-nigh fatal, was one of leadership. Jay was a
satisfactory magistrate, but he was not a great force on the Supreme
Bench, partly on account of his peculiarities of temperament and his
ill-health, and partly because, even before he resigned in 1795 to run
for Governor in New York, his judicial career had been cut short by an
important diplomatic assignment to England. His successor, Oliver
Ellsworth, also suffered from ill health, and he too was finally
sacrificed on the diplomatic altar by being sent to France in 1799.
During the same interval there were also several resignations among
the associate justices. So, what with its shifting personnel, the lack of
business, and the brief semiannual terms, the Court secured only a
feeble hold on the imagination of the country. It may be thought, no
doubt, that judges anxious to steer clear of politics did not require
leadership in the political sense. But the truth of the matter is that
willy-nilly the Federal Judiciary at this period was bound to enter
politics, and the only question was with what degree of tact and
prudence this should be done. It was to be to the glory of Marshall that
he recognized this fact perfectly and with mingled boldness and caution
grasped the leadership which the circumstances demanded.
The situation at the beginning was precarious enough. While the

Constitution was yet far from having commended itself to the back
country democracy, that is, to the bulk of the American people, the
normal duties of the lower Federal Courts brought the judges into daily
contact with prevalent prejudices and misconceptions in their most
aggravated forms. Between 1790 and 1800 there were two serious
uprisings against the new Government: the Whisky Rebellion of 1794
and Fries's Rebellion five years later. During the same period the
popular ferment caused by the French Revolution was at its height.
Entrusted with the execution of the laws, the young Judiciary "was
necessarily thrust forward to bear the brunt in the first instance of all
the opposition levied against the federal head," its revenue measures, its
commercial restrictions, its efforts to enforce neutrality and to quell
uprisings. In short, it was the point of attrition between the new system
and a suspicious, excited populace.
Then, to make bad matters worse, Congress in 1798 passed the Sedition
Act. Had political discretion instead of party venom governed the
judges, it is not unlikely that they would have seized the opportunity
presented by this measure to declare it void and by doing so would
have made good their censorship of acts of Congress with the approval
of even the Jeffersonian opposition. Instead, they enforced the Sedition
Act, often with gratuitous rigor, while some of them even entertained
prosecutions under a supposed Common Law of the United States. The
immediate sequel to their action was the claim put forth in the Virginia
and Kentucky Resolutions that the final authority in interpreting the
National Constitution lay with the local legislatures. Before the
principle of judicial review was supported by a single authoritative
decision, it had thus become a partisan issue!*
* See Herman vs. Ames, "State Documents on Federal Relations," Nos.
7-15.
A few months later Jefferson was elected President, and the Federalists,
seeing themselves about to lose control of the Executive and Congress,
proceeded to take steps to convert the Judiciary into an avowedly
partisan stronghold. By the Act of February 18, 1801, the number of
associate justiceships was reduced to four, in the hope that the new
Administration might in this way be excluded from the opportunity of
making any appointments to the Supreme Bench, the number of district
judgeships was enlarged by five, and six Circuit Courts were created

which furnished places for sixteen more new judges. When John
Adams, the retiring President, proceeded with the aid of the Federalist
majority in the Senate and of his Secretary of State, John Marshall, to
fill up the new posts with the so-called "midnight judges,"* the rage
and consternation of the Republican leaders broke all bounds. The
Federal Judiciary, declared John Randolph, had become "an hospital of
decayed politicians." Others pictured the country as reduced, under the
weight of "supernumerary judges" and hosts of attendant lawyers, to
the condition of Egypt under the Mamelukes. Jefferson's concern went
deeper. "They have retired into the judiciary as a stronghold," he wrote
Dickinson. "There the remains of Federalism are to be preserved and
fed from the Treasury, and from that battery all the works of
Republicanism are to be beaten down and destroyed." The Federal
Judiciary, as a coordinate and independent branch of the Government,
was confronted with a fight for life!
* So called because the