Today in Supreme Court History: February 11, 1803

2/11/1803: Marbury v. Madison is argued.

Comments

[Dan Schiavetta]

Jaffree v. Board of School Comm'rs of Mobile County, 459 U.S. 1314 (decided February 11, 1983): staying District Court order allowing reciting of Lord's Prayer as part of morning school activities; District Court judge has to follow Supreme Court precedent even if he disagrees with it (the District Court decision, 554 F.Supp. 1104, reads like a manifesto attacking Supreme Court case law, citing invocations of God by the Founding Fathers, the Pledge of Allegiance, etc.) (the judge, Brevard (not Learned) Hand, was known for hanging a Confederate flag in his office) (the full Court eventually reversed the District Court, 472 U.S. 38)

Conners v. United States, 180 U.S. 271 (decided February 11, 1901): Indian tribe not liable for livestock taken and destroyed when they were fired upon by United States troops while peacefully going to reservation and had to "go on the warpath" (Court cites "ghastly facts of this case" but holds the United States not liable either)

Mabee v. White Plains Publishing Co., 327 U.S. 178 (decided February 11, 1946): newspaper had to comply with Fair Labor Standards Act even though only 0.5% of its daily circulation was out of state (i.e., interstate commerce)

Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (decided February 11, 1946): subpoena on newspaper for wage and hour records does not violate Fourth Amendment even though no charges specified; need only probable cause (for what?)

Strong v. United States, 154 U.S. 632 (decided February 11, 1878): owner of vessel sunk after hitting "trees and snags" in river is liable for loss because consented to charterer which operated vessel

[Dr. Ed 2]

What I never understood was why Marshall didn't just deliver the commission late as Adams had already signed it, and other than Marbury, who would ever have been the wiser? Conversely, how would they ever have been able to prove it?

Which raises a very different question -- was this a Lord v. Veazie?
Did Marshall intentionally fail to deliver the commission on time so that Marbury could sue in Marshall's court?

And what was a Federal Justice of the Peace? Was it a commission actually worth suing over? Did it even exist outside of DC?

[Dan Schiavetta]

Good point. Marshall delegated the task to his brother, James Marshall, who apparently couldn’t deliver it in time (there were two days left until Jefferson took over). If he had delivered it on March 5, who would know otherwise?

Also, Marbury was only one of many “midnight judges”. Surely he wasn’t the only one who didn’t get a commission handed to him by noon on March 4. (see https://www.whitehousehistory.org/the-origins-of-the-march-4-inauguration for why from 1793 onward the President was considered to take office at noon, and not the preceding midnight)

I don’t know if Adams sought or got Senate confirmation, or needed it. (see https://www.senate.gov/artandhistory/history/minute/The_Significance_of_March_4.htm on why the Senate was considered to take office at noon, though this didn’t get established until some years later)

[Jonathan Affleck]

Jefferson found the undelivered commissions in a desk when he took office.

[Dan Schiavetta]

This conflicts with what Chemerinsky says in his book (cited by Wikipedia) which says that James was “dispatched” to deliver the commissions. But if you are correct then that answers Dr. Ed’s question.

[F.D. Wolf]

I recollect another instance, and the more particularly perhaps, because it in some measure, bore on myself. among the midnight appointments of mr Adams’ were commissions to some federal justices of the peace for Alexandria. these were signed and sealed by him, but not delivered. I found them on the table of the department of State, on my entry into office, and I forbade their delivery. Marbury, named in one of them, applied to the Supreme court for a Mandamus to the Secretary of State (mr Madison) to deliver the commission intended for him. the court determined, at once, that, being an original process, they had no cognisance of it; and there the question before them was ended. but the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case: to wit, that they should command the delivery. the object was clearly to instruct any other court having the jurisdiction, what they should do, if Marbury should apply to them. besides, the impropriety of this gratuitous interference, could any thing exceed the perversion of law?

Letter from Thomas Jefferson to William Johnson (June 12, 1823) https://founders.archives.gov/documents/Jefferson/98-01-02-3562

The Justice of the Peace was appointed by the President for a five-year term and did not require the advice and consent of the Senate.

[Dan Schiavetta]

Thanks much! Jefferson was known to rewrite history, but his account here rings true because it explains what happened.

I'm forced to conclude that Irwin Chemerinsky (with whom I am flattered to be on the same roster of Continuing Legal Education faculty) was wrong about this.

[F.D. Wolf]

I’ll note, as the full extent of the president’s Appointment Power is understood today, Jefferson (probably) could have given Marbury his commission and then immediately fired him. Or, Jefferson could have simply appointed someone else to the position, effectively nullifying Marbury’s commission.

But these were early days, and all these issues had not yet been fully developed by the courts.

[F.D. Wolf]

As I think about it, whether Jefferson could have done what I suggested would be uncertain, so I retract my comment.

[David Nieporent]

Or maybe you're just overreading Chemerinsky. Maybe when he says that James was dispatched to do so, he just means that James was instructed to do so, not that the documents were actually put in James' hands and that he walked out with them.

[The Margrave of Azilia]

“Well, that game of beer pong sure was fun, Madison, but I really have to go and deliver Mr. Marbury his commission. Oh, I feel really tired, I’ll have to lie down somewhere. Would you be a good sport, Madison, and deliver the commission for me?”

“I’ll have that task behind me very soon.”

“I knew I could count on you, Madison, now whatever you do, don’t tell my brother about this little episode.”

[F.D. Wolf]

I suspect one of Marbury’s main motivations was the paycheck. And I think the failure to deliver the commission was simply the result of chaos. The JP positions were created by a statute that became law on February 27, 1801, seven days before Adams left office and Jefferson would enter it. John Marshall was simultaneously serving as both Secretary of State and Chief Justice, so, needless to say, had a lot on his plate.

In the weeks before Adams left office, the Federalists created dozens of new offices which required individuals to fill them and to be confirmed by the Senate, all in a very short period of time in an era in which communication was slow and difficult.

To give but one example, one of the point persons in this harried endeavor was Rep. Harrison Gray Otis who was tired of Washington and wished to return to Boston. While the eventual Judicial Act of 1801 was still in its formative stages, he wrote John Davis, federal District Attorney of Massachusetts, to inquire about his interest in the district judgeship currently held by John Lowell, who would be elevated to a newly created circuit court judgeship. Davis responded that he would be as long as the salary of district judges was not lower than that of circuit judges. When Davis learned that the final legislation did not pay district judges as much as circuit judges, he wrote to have his name withdrawn from consideration. But the Senate, by then, had already confirmed Davis. In the meantime, President Adams had appointed Otis to Davis’ former district attorney position. Davis, appreciating that a small paycheck was better than no paycheck, accepted the new position.

(Lowell would lose his new position a year later when the Judicial Act of 1801 was repealed. Otis would, in short order, be fired by incoming President Jefferson, though he would serve several years in the Massachusetts legislature and as Mayor of Boston before returning to Washington as a U.S. Senator in 1817. Davis would serve with distinction in his position as a district judge for 40 years.)

[Frank Drackman]

Paul Giamatti was a great John Adams (does a good Einstein on the Verizon commercial) kept waiting for Howard Stern to show up.

[Jonathan Affleck]

The District Court (Judge Hand) was at war with the Doctrine of Incorporation.

Second, the defendants argue that whatever prohibitions were initially placed upon the federal government by the first amendment that those prohibitions were not incorporated against the states when the fourteenth amendment became law on July 19, 1868. The defendants have introduced the Court to a mass of historical documentation which all point to the intent of the Thirty-ninth Congress to narrowly restrict the scope of the fourteenth amendment. In particular, these historical documents, according to the defendants, clearly demonstrate that the first amendment was never intended to be incorporated through the fourteenth amendment to apply against the states. The Court shall examine each historical argument in turn.

Jaffree v. Board of School Com'rs of Mobile County, 554 F. Supp. 1104, 1113 (S.D. Ala. 1983)

[Dan Schiavetta]

Quite a broader position than was necessary to rule the way he wanted to. Like I said, his opinion was a manifesto.

[David Nieporent]

Yeah, I first thought he was just making the argument that the establishment clause wasn't incorporated; others, such as Thomas, have made that argument. But he's actually arguing that the 14th amendment didn't incorporate anything.