You have probably read over the past several days, maybe 100 times, that President Trump and Senator Mitch McConnell are violating the “norms” of Supreme Court appointments by nominating, and planning to confirm, Judge Amy Coney Barrett to fill the current Supreme Court vacancy, with just 38 days remaining before the upcoming presidential election. If you think there might be something to the theory that “norms” are being violated, you might be interested in the history of the federal court nominations and confirmations of 1801. Among other things, this history is what led to the famous case of Marbury v. Madison.

Marbury v. Madison, decided in 1803, is likely the most famous of all Supreme Court cases. At least when I went to high school, we learned about it in our American History course. This is the case where the Supreme Court, under Chief Justice John Marshall, asserted and established the principle of judicial review, that is, the principle that the courts can review whether a statute enacted by Congress violates the Constitution, and if it does, declare the statute unconstitutional. In law school, Marbury v. Madison is generally the first case that one reads in the course on constitutional law.

The background of Marbury v. Madison is fascinating. It starts with the election of 1800. That was the first presidential election to be seriously contested. Our current two-party system was only in its formative stages, with one group (led by incumbent President John Adams and ex-Treasury Secretary Alexander Hamilton) calling themselves the Federalists, and the other group (led by Vice President Thomas Jefferson and ex-Senator Aaron Burr) calling themselves the Democratic-Republicans. Adams ran for re-election with a Federalist running-mate named Charles Pinckney, and Jefferson and Burr ran as the D-R ticket. By the time the electoral college had been fully selected (late October 1800), it was clear that the D-Rs had more electors; thus, Adams had lost. But when the electoral votes were actually cast in early February 1801, Jefferson and Burr got equal numbers of electoral votes, meaning that the election then had to be decided by the House of Representatives.

Meanwhile, over in the Senate, the party breakdown was going to go from 22 Federalists and 10 D-Rs to 15 Federalists and 17 D-Rs. However, the new Senate would not convene for several months. Before that would occur, Adams and the existing Federalist-controlled Senate remained in office into March 1801. They proceeded to use their positions to substantially remake the federal judiciary.

First, there was the Supreme Court. John Marshall was a Federalist and was serving as Secretary of State in the last year of the Adams presidency. The prior Chief Justice (Ellsworth) resigned for health reasons at the end of 1800. In January 1801 — after it was clear that Adams had lost the election, but before the House had selected Jefferson over Burr for President — Adams nominated Marshall to be Chief Justice. Within a week, on January 27, 1801, the lame-duck Senate had confirmed Marshall. He took office on February 4, and then served as Chief Justice for 34 years. “Norms,” anyone?

And that was only the beginning of the plans of Adams and the Federalists for the federal judiciary. In February 1801 — even as the House was going through some 36 ballots before finally electing Jefferson President on February 17 — the lame-duck Congress passed the Judiciary Act of 1801. That Act reorganized the federal judiciary by adding an entire layer of courts of appeals, with some fifteen new judgeships at that level, plus several new district judgeships, plus some 42 justices of the peace for the District of Columbia.

Adams and the Federalist-controlled Senate moved promptly to nominate and confirm all these new judges. The process consumed the last days of the Adams administration. Under a procedure outlined in the Constitution, for a judge to take office, after confirmation by the Senate, the President had to sign a “commission” for each judge; then the “great seal” of the United States needed to be affixed to the commission; and then the commission was to be delivered to the judge. It seems that Adams stayed up late on his last night in office (March 3) signing the commissions, thereby giving these judges the nickname of the “midnight judges.” The seals were promptly affixed by the Secretary of State, who was none other than new Chief Justice John Marshall, continuing to hold this office until the new administration came in. And finally the signed and sealed commissions were given to James Marshall, John’s brother, to deliver to the new judges. But the job of delivering all the commissions was too time-consuming to be completed before Jefferson took office at noon on March 4, 1801.

When Jefferson assumed office the next day he discovered 23 undelivered commissions of new justices of the peace in the District of Columbia. Of those, six were D-Rs, whom he then re-appointed; and he also re-appointed six who were Federalists. But that left 11 whom he declined to re-appoint. From a piece at Brittanica.com:

Most of the Federalists who did not receive their commissions accepted their fate passively, but not William Marbury, a Federalist leader from Maryland. Marbury went to court to force the Jefferson administration to deliver the commission, without which he could not serve in office. The resulting case led to one of the Supreme Court’s most important decisions, Marbury v. Madison (1803).

The Marbury v. Madison case has puzzled law students ever since, because it is very complex to read and almost impossible to understand without knowing this background and the political situation in which Marshall found himself. To assert the power of judicial review was a huge step for a Court then completely controlled by the Federalists, in the aftermath of a sweeping victory by the D-Rs that had otherwise swept the Federalists out of the political branches. But Marshall managed to make the case a victory for Jefferson (and his Secretary of State Madison, who was the named defendant in the case), albeit on what seemed like a very minor point. The heart of the decision is that the Supreme Court had no jurisdiction in the case to order a remedy of mandamus against Madison, because the statute that by its terms gave the Court original jurisdiction to issue the mandamus exceeded the power of Congress under the Constitution to confer original jurisdiction on the Supreme Court. Thus Marbury had no way to force the new administration to seat him as a justice of the peace, and he never got the job.

But how about all those other “midnight judges,” particularly the fifteen circuit court of appeals judges added by the Judiciary Act of 1801? The next year, the new D-R-controlled Congress repealed the Judiciary Act of 1801, and thereby abolished all of those courts and judgeships. The judges were forced out of office as of July 1, 1802.

But wait a minute, you say: Don’t federal judges serve “during good behavior” (i.e., for life) under the Constitution? How could Congress get rid of them by abolishing their court? From the same piece at Brittanica.com:

Chief Justice John Marshall doubted the constitutionality of the repeal but recognized that he could not sway the opinion of a majority of justices. When a specific challenge did reach the court in Stuart v. Laird (1803), the court, in an opinion by Justice William Paterson, affirmed the constitutionality of the repeal. Thus, what had seemed so grave a question at the time passed quickly into obscurity.

My conclusion would be that our political parties have played hardball with each other pretty much since day one.