The Washington times., 1937-02-09
COURT BATTLE
PRECEDENT
SET IN 1901
By EARL GOODWIN

Is packing the court approved
by American tradition?
History says that maybe no
President ever really packed the
Supreme Court-but the first job
done on the Supreme Court for
political purposes was not a job
of packing-but of unpacking.
The conservative Federal party,
defeated and driven out Of office
with Adams, passed a law reduc-
ing the court from six to five
and therefore deprived Jefferson
of filling vacancy when he came
in. So jefferson brought his new
deal to washington with a qu1n-
tuplet Supreme Court entirely
composed of mo" men as FAR as
his New Deal Of 1901 was con-
cerned.
1t All Started There
Moreover, the very business OF
declaring a law unconstitutional
arose out Of that episode-and 1t
was none other than John Mar
shall, Secretary of State and about
to be appointed Chief Justice
of the Supreme Court, and a
foe Of jefferson in politics, who
thought up this method of over.
riding the other two coordinate
branches Of Government. Up to
that time no one had ever dreamed
of saying that a law enacted by
Congress and signed by the Chief
Executive was not sound.
Jefferson's defeat of Adams was
a New Deal affair in 1900 and
1901; it was looked on as the rise
of dangerous radical forces of the
French Revolution type. So in
lame duck session the conservative
Congress rushed through judici-
ary act to clip Jefferson's wings;
they reduced the Supreme Court
membership and added 16 Federal
judges to the existing circuits. This
was a perfect stone wall defense
against Jefferson'S New Deal, be-
cause the idea was to fill the 16
jobs with good strong anti-Jeffer-
son partisan judges.
Marshall Named Chief
It was Marshall as Secretary
of State who had to sign
the commissions for the new
judges to be appointed under this
new judiciary act. Apparently the
business of commissioning judges
was not then as easy as it would
be today, because there was a great
rush about it. Little or no time
remained between the passage OF
the act and the time limit; so
Marshall worked feverishly by
candle-light up to the midnight
hour Of the last day ''peddling"
commissions of the justices, as
Claude Bowers, U. S. Ambassador
to Spain, terms it in his latest
work, jefferson in Power"
That episode is known in history
as the affair of the Midnight
Judges" and at the time was
looked upon as an outright poll
tical steal. Marshall was strong |
partisan in politics; and was
looked upon as partisan on the
bench-by the early Jeffersonians.
Out of that tug-of-war between the
two parties came suit in the
matter of the appointment Of one
Of these judges; and that suit,
Marbury versus Madison is the one
which Chief Justice Marshall de-
clared unconstitutional-the first |
time any law Of Congress had been
set aside as unconstitutional by the
highest court.
Knocked Jefferson Flat
That was the beginning Of such
declarations; the Constitution it
self makes no provision for any |
such action-it was just new idea
and it knocked jefferson flat
he never was able to devise a way
to get around it; and he always |
looked on it as a political brick
thrown at him. Marshall and the |
court never again declared any
thing unconstitutional in Mar
shall's service of thirty-two years;
nor did anything of the sort |
happen again for twenty years
after Marshall had passed away. |
The Jeffersonians repealed the
act establishing the sixteen new
Federal judges; and then in order |
to keep the courts from changing |
it-Congress enacted law ad-
journing the courts for two sea-
sons; but one of the odd historic
episodes then occurred-when the
repeal Of the judiciary act finally
did reach the conservative Su-
preme Court that quintet of Ham
iltonians upheld it.