JUDICIARY ACTS OF 1802 2 Stat. 132, 2 Stat. 156 (1802)

Gloating Federalists declared that the judiciary act of 1801 was as valuable for their party as an election victory. The appointment of only Federalists to the new circuit judgeships, the attempt by a new circuit court to get a Jeffersonian editor indicted for seditious libel, and the issuance in 1801 of the show cause order in marbury v. madison (1803) convinced President thomas jefferson's administration that the Federalists meant to continue party warfare against them from the bench. Republicans also opposed the expanded jurisdiction of the federal courts; they wanted litigants to remain primarily dependent on state courts and the United States as dependent as possible on the states for the execution of its laws. The upshot was the repeal of even the constructive reforms of 1801.

Federalists in Congress argued that repeal would subvert the independence of the judiciary and was unconstitutional because the circuit judges had tenure during good behavior. The Republicans answered that the Constitution empowered Congress to establish and therefore to abolish inferior federal courts. The debate on the repealer triggered a prolonged congressional discussion on national judicial review. Federalists supported the power of the Supreme Court to hold acts of Congress unconstitutional, while Republicans assaulted judicial review as an undemocratic judicial usurpation, a violation of separation of powers, and a subversion of limited government. The only proper check on the popularity elected and politically responsible branches of the national government, Republicans argued, was the outcome of elections. Chief Justice john marshall's opinion in Marbury was the Federalist reply from the bench.

Apprehensive about the possibility that the Supreme Court might declare the repealer unconstitutional, Congress passed another judiciary act which abolished the August term of the Court. By fixing one term a year, to be held in February, Congress managed to postpone the next meeting of the Court for fourteen months, allowing a cooling-off period, during which time the Justices could resume their circuit duties. They did, and in stuart v. laird (1803) they sustained the power of Congress to assign them to circuit work. The Judiciary Act of 1802 also increased the number of circuits from three to six. Until the Reconstruction period, the federal judicial system remained basically unchanged after 1802.

Leonard W. Levy
(1986)

Bibliography

Ellis, Richard E. 1971 The Jeffersonian Crisis: Courts and Politics in the Young Republic. Pages 4–60. New York: Oxford University Press.