Bench Memos

Gingrich’s Awful Proposal to Abolish Judgeships—Part 2

As Ed notes in his introductory post, Newt Gingrich relies on a precedent from the Jefferson Administration when speaking of his proposal to abolish courts (or seats on courts) in order to dispose of activist judges.  Herewith a review of that supposed precedent.

In 1789, the first Judiciary Act created a number of district courts, with limited trial jurisdiction, and a Supreme Court with six members including the chief justice.  An intermediate layer of courts (with some appellate jurisdiction over the districts, but they were really the principal trial courts) was created in three geographic circuits, but no judicial seats unique to those courts were created.  Instead, Supreme Court justices “rode circuit” and sat together with district judges on the bench of the circuit courts.  This meant a good deal of travel for the justices, who sat as the Supreme Court in the capital (usually for two brief terms each year) but spent a lot of time on the road pursuing their duties as trial judges at the circuit level.

In John Adams’ administration, long before the election of 1800, a judicial reform was proposed in Congress to expand the number of geographic circuits from three to six, and to give the circuit courts their own unique judges.  This would relieve both district judges and Supreme Court justices of the necessity of serving on more than one court.  The proposal stalled for a long time in Congress, but was finally passed in February 1801, after the defeat of the Federalists in the election of 1800, but while they still had control of Congress and the presidency.  Sixteen judgeships were created for the new circuits.  The Jeffersonian Republicans, still in the minority, had a number of substantive objections to the bill—which also included an enlarged role for the federal judiciary generally in the American legal system—but did not clamor too loudly until they realized that in the few remaining days before Thomas Jefferson’s March 1801 inauguration, the Adams administration was really going to manage to fill every single new seat on the new circuit courts.

Upon entering into control of Congress and the executive, the Jeffersonians viewed the judiciary as a partisan redoubt of the Federalists, and a redoubt whose occupants had life tenure, no less.  So in 1802, they passed two acts.  The first simply repealed the act of 1801 as of July 1, 1802, and directed that any legal actions pending in the courts created by that earlier act should be transferred to the appropriate court that the repeal act “revived” from the status quo ante.  In short, it simply set the clock back to the original 1789 act, eliminated all the new circuit courts and their judgeships, and restored the system of circuit riding for Supreme Court justices.  The second act passed in 1802, most notably, took one idea from the now-repealed act of 1801—the expansion from three judicial circuits to six.  But it kept the Supreme Court justices on circuit duty.

In letters we can read today among the Supreme Court justices (who had been glad to be relieved of circuit riding by the 1801 act), the reaction to the 1802 repeal act was dismay.  It seems that only one of them, Samuel Chase, raised a constitutional objection to the elimination of the circuit judges’ positions.  The other justices, Chief Justice Marshall included, were more concerned about the constitutionality of their being required to serve on two courts with but a single commission as a judge.  Yes, this had been done for a dozen years, since the original 1789 act, but maybe it was of doubtful propriety after all.  Congress had also eliminated the August 1802 term of the Supreme Court, so it wouldn’t meet again February 1803, and the scattered justices had to decide what to do by correspondence, without meeting as a court in Washington.  If they rode circuit once again, they were effectively acquiescing in Congress’s power to eliminate the circuit courts of the 1801 act and to reassign circuit duties to them.

That’s what they decided to do.  And when Chief Justice Marshall, on circuit, heard a case carried over from one of the now-eliminated circuit courts, in which one of the parties complained that the Repeal Act was unconstitutional, he rejected the plea.  In Stuart v. Laird (1803), with Marshall recused since he sat on the case below, the remaining justices of the Supreme Court affirmed his ruling.  Addressing the question whether the justices could sit on the circuit courts as the 1802 act directed, Justice Paterson said that “practice and acquiescence” for a dozen years after the 1789 act “affords an irresistible answer, and has indeed fixed the construction” of the Constitution on this point.  And that was that.  Nothing was said in Stuart about the constitutional legitimacy of abolishing the 1801 circuit courts.  But tacitly, it was approved, since it would not have been possible to transfer cases to the 1802 circuits otherwise.

Meanwhile, the ousted circuit court judges petitioned the Congress for the pay they said they were owed as judges serving “during good behavior.”  But they had no courts to sit on, and no judicial duties—and neither had they been replaced by fresh appointees in their stead (this will become relevant in a moment).  And so they got nowhere.

Now is this a precedent, as Newt Gingrich says, for the kinds of things he’s been talking about?  Gingrich has at various times said that the Ninth Circuit could be abolished entirely, in order to get rid of its notoriously activist judges (though some good judges would be swept out to sea as well).  Presumably Gingrich does not propose to leave the western states, now covered by the Ninth Circuit, entirely without any federal appellate court between the districts and the Supreme Court.  Would he then abolish the Ninth Circuit one day, and recreate it the next with new vacancies for President Gingrich to fill?  Would he instead break up the very large circuit into two or three new ones (an idea with some merit taken by itself)?  In either case, Gingrich would not be following the precedent he claims to find in the 1802 legislation.  If Congress abolished the Ninth Circuit, and either recreated it “as is” or created multiple new circuits—in either case with substantially the same geographic coverage, the same legal jurisdiction, and the same position in our three-tiered federal judiciary—then we would be witnessing an unconstitutional end run around the permanent tenure of federal judges.  The “abolition” would be wholly pretextual, undertaken simply in order to bring about a new set of judicial vacancies.

Let me be clear about what happened in 1802.  Some people then and now regard the Repeal Act and the Judiciary Act of 1802 as unconstitutional, inasmuch as fifteen judges (one seat was vacant), in losing their courts, also lost their putatively permanent situations and their compensation.  If you think this, then Stuart v. Laird was wrong, and so is Gingrich’s proposal today.  But one may reasonably argue that a court Congress can create, it can abolish.  The motives of the actors in 1801 and 1802 were partisan  (on both sides), but that is not the issue.  One Congress, believing for whatever reason that an earlier Congress acted improvidently, can repeal what that earlier Congress did.  That principle should even cover the creation of courts with life-tenured judges.  So a good case can be made that Stuart v. Laird is correct.

But Gingrich’s proposal doesn’t match its supposed precedent.  He doesn’t simply want to restore a status quo ante (for motives pure or partisan) by abolishing a court we don’t need.  He apparently wants to abolish it and then recreate it in some fashion, with new vacancies.  That’s cheating on the Constitution’s rules for the removal of judges one doesn’t like.  If the problem is the judge (not the court), then the Constitution provides for impeachment.  That’s difficult, both procedurally and in terms of the standards to be applied to justify removal.  But it’s difficult for a reason.  I have often said that judicial independence is something we could stand to have a lot less of.  But there are right ways and wrong ways to bring activist judges to heel.  This is a very badly wrong way.


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