Throughout the years, partisan politics have frequently influenced the nomination and confirmation of federal judges—especially Supreme Court justices. The last three appointments have been particularly divisive. One way suggested to alleviate the partisan nature of the Supreme Court appointments is to augment the size of the Court so that an incoming President could nominate new judges who would counterbalance the perceived lopsided partisanship of the serving judges. Such blatant partisanship first occurred during the waning days of the presidency of John Adams in 1801.
The virulent election of 1800 saw the total defeat of the incumbent Federalist President, the House of Representatives, and the Senate. Looking back in 1819, Jefferson would refer to the election as the “Revolution of 1800.” But before the inauguration of Jefferson on March 4, 1801, Federalists, still dominant in the lame duck session of Congress, bolstered their total control over the judiciary by passing the Judiciary Act of 1801 which was signed by President Adams on February 13, 1801, only three weeks before Jefferson’s inauguration. This act created six new judicial circuits with sixteen new judgeships and reduced the size of the Supreme Court from six to five justices, thus denying President Jefferson the opportunity to appoint a new Supreme Court justice until two vacancies occurred. All of this was meant to stifle the “the effects of visionary schemes or fluctuating theories” of the incoming Jefferson administration. The new circuit courts would replace the practice of “circuit riding” in which a Supreme Court justice sat with a state’s district judge to compose the state’s circuit court.
During the last three weeks of his administration, President Adams nominated the new judges and the Senate confirmed them. Under other legislation, Adams made additional judicial appointments including more than forty justices of the peace for Washington, D.C. Jeffersonians denounced these “midnight appointments,” the last occurring at 9:00 p.m. on March 3. Jefferson wrote that he considered the “appointments to office as personally unkind. They were from among my most ardent political enemies, from whom no faithful cooperation could ever be expected, and laid me under the embarrassment of acting thro’ men whose views were to defeat mine; or to encounter the odium of putting others in their places. It seemed but common justice to leave a successor free to act by instruments of his own choice.”
In March 1802, the Jeffersonian Congress repealed the Judiciary Act of 1801 and replaced it in April with the Judiciary Act of 1802. The Supreme Court was restored to six justices and the new circuit courts were eliminated. Federalists denounced the removal of the judges as unconstitutional because federal judges served during good behavior. Jeffersonians responded saying that they did not dismiss any judges, they merely eliminated some courts, arguing, that since Congress had the constitutional power to create inferior courts, it must also logically have the authority to eliminate courts. A constitutional crisis was averted when the Supreme Court unanimously ruled in Stuart v. Laird that Congress could create and abolish inferior courts and the justices agreed to return to riding the circuit. Other attempts to limit the federal judiciary (such as setting term limits for federal judges) by constitutional amendments failed to take effect, but the growing national dispute over the federal judiciary persisted and at times intensified. Jefferson wrote in 1819 that the constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent, is absolute.”
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