The Great Decision

The justices had retreated to Stelle’s Hotel, the popular establishment opened by Pontius Delare Stelle in the fall of 1800 to cater to the new capital. Like Conrad and McMunn’s, where the justices previously had stayed, Stelle’s stood directly across from the Capitol, on the east side (where the Library of Congress now stands), making it easy and convenient for congressmen and senators. Rooms at Stelle’s were lovely—outfitted with a fireplace, “white windsor chairs,” “red copperplate curtains,” and “a large, handsome parlour”—and Pontius Stelle presided in the hotel lobby as a genial host.

By Tuesday, February 15, 1803, just a few days after the argument in Marbury, Chase could not manage to hobble the short distance to the Capitol. Chief Justice John Marshall, Justice William Paterson, and Justice Bushrod Washington showed up in the Court’s dingy committee room. But, with Justice William Cushing ailing in Massachusetts and Justice Alfred Moore also suffering from illness, the Court could not conduct any business. The official minutes of the Supreme Court for the day simply note, “From the indisposition of three of the Justices, a quorum could not be formed.”

The next day, Wednesday, February 16, 1803, Chase again could not leave the hotel and make it to the Capitol. But Marshall had a sudden insight. If Chase could not come to the Court, the Court could come to Chase. As the Supreme Court minutes for Wednesday, February 16, 1803, concisely explain: “The indisposition of the Justices continuing, the Court adjourned from the Capitol to Stelle’s Hotel, as being more convenient when the Court opened.” The itinerant Court was now presiding in the parlor of a hotel. The accommodations at Stelle’s were far more luxurious than the dreary committee room in the Capitol.

On Thursday, February 17, the Court heard four oral arguments in its new perch at Stelle’s. That very night, in the same room where the Supreme Court had heard arguments that day, the Washington Dancing Assembly hosted a widely advertised ball in the hotel’s spacious parlor, one of the highlights of the social season. Also in residence at Stelle’s with the justices was one “Doctor Fendall,” who had moved into the hotel earlier that year and who offered, from his room at the inn, a wide range of dental services and a special “Dentrifice” to make “the breath sweet and agreeable.”

The Marbury case loomed unresolved. Many observers had anticipated an immediate decision, as was common with the Supreme Court at the time, and they speculated on the reason for the delay. Just three days after the conclusion of the testimony and the oral arguments in Marbury, on Monday, February 14, 1803, the Aurora noted, “The supreme court was expected to have taken up the mandamus business this day. However, the indisposition of judges Moore and Cushing, is said to have caused it to be postponed for this day.” Throughout the week of February 14, as the Court considered and disposed of other cases, it issued no word on Marbury.

While “the mandamus business” sat with the Court, political warfare between the Republicans and the Federalists continued apace. Federalists attacked Jefferson for being too weak in his response to Spain’s shutting down of the port of New Orleans. Federalist Senator James Ross of Pennsylvania introduced legislation requiring Jefferson to summon 50,000 state militia and seize New Orleans. Senate debate on the issue, with fierce charges and countercharges, dominated the Senate for several days.

As the end of the Seventh Congress approached in March, familiar faces would be leaving both the Senate and the House of Representatives. The Republican press crowed over the imminent departure of their favorite target, Senator Gouverneur Morris. Morris had not run for reelection. The Federalist collapse in New York had been so complete that there was not even a Federalist candidate to succeed him; the New York Legislature’s choice had been between two Republicans. The National Intelligencer could not restrain its exultation: “We congratulate the republicans and friends of representative government of New York, that the period is near at hand when they will have a real representative in the Senate in the room of Gouverneur Morris, who has, for several years past, instead of representing, opposed almost invariably the will of his constituents.”

Meanwhile, Congressman James Bayard of Delaware was defeated for reelection by Caesar A. Rodney, a nephew of a signer of the Declaration of Independence and a Jefferson favorite who had been heavily backed by the national Republicans. Rodney bested Bayard by a mere 15 votes, but it was enough to send Bayard home to Delaware.

Massachusetts, however, bucked the trend. It selected a new Federalist senator to succeed the incumbent, and he had a familiar name. “The election of John Q. Adams as Senator has been confirmed in the Senate of Massachusetts,” reported the Intelligencer on February 21, 1803, “by 19 votes out of 26.” Only two years before, on the day of Jefferson’s inauguration, John Adams had skulked out of the new capital before dawn; now his son would be returning triumphantly to serve as an opposition senator.

George Washington’s Birthday, February 22, had emerged as the consensus date to celebrate the life of America’s first president. On Tuesday, February 22, 1803, eleven days after the close of the arguments in Marbury and with the case still pending, leading Federalist congressmen and senators gathered to honor the revered patriarch. Chief Justice John Marshall merrily joined the celebrants at Stelle’s. So did Justice William Paterson, and so did Justice Bushrod Washington, the president’s nephew.

As was customary, the celebration began with prepared toasts, seventeen in all. The first toast was to “THE DAY ”—Washington’s Birthday—a day “to us dear, to posterity sacred.” Another toast undoubtedly caught the ear of the three Supreme Court justices in attendance: to “An independent Judiciary—the safeguard of civil liberty.” Nobody mentioned the Republican view that the judiciary was the last bastion of Federalist power. And on it went, with toasts to “The honor of our country—her most precious treasure,” to “The Heroes of The Revolution—Enshrined in the hearts of their countrymen,” and to “Washington’s policy—Measures founded on experience, not on theory.”

Now it was time for spontaneous toasts by individuals. Congressman Bayard rose first, and, with a shimmering vision of an American geographical empire, toasted “The natural boundaries of the United States, the Ocean, the Gulph, the Mississippi and the lakes.” And then it was Senator James Ross, in the midst of his fight to force Jefferson to take a tougher stand on New Orleans, with a pointed reference to his ongoing congressional battles—to “Better security than parchment for our rights on the Mississippi.”

John Marshall now commanded attention as he began a toast. Though few knew it, the Marbury decision, which Marshall had been preparing out of public view, would be announced in less than forty-eight hours, on Thursday morning, February 24. Of the revelers in the room at Stelle’s that night, only Marshall, Paterson, and Washington knew the outcome. Addressing the crowd in the luminous hotel, Marshall carefully offered a toast to “Those few real patriots who love the people well enough to tell them the truth.” Marshall, Paterson, and Washington must have eyed one another meaningfully, and smiled.

The next day, February 23, the Court met again in Stelle’s. All of the justices except Cushing now were present; Justice Moore had recovered enough to sit with the Court. The Court disposed of several cases and heard arguments in three more. One case featured Philip Barton Key representing the defendant. Key had been one of the midnight judges who lost his job when the Jeffersonian Congress repealed the Judiciary Act.

The third case that morning was Stuart v. Laird. This case presented the constitutionality of the repeal legislation that had taken Key and other midnight judges off of the bench by eliminating the “midnight courts” and forcing the justices to ride circuit again. Arguments would begin on Wednesday, February 23, and continue into the following day.

Charles Lee rose for Hugh Stuart. Lee attacked the constitutionality of the repeal legislation. John Laird had sued Stuart in early 1801 on a contract claim. Laird won in the new midnight court. In 1802, Laird sought an order enforcing his victory. But the midnight court had been eliminated by the repeal legislation The case was returned to the re-established circuit court in Richmond, with John Marshall presiding as part of his return to circuit-riding duties. Seeing an opening, Lee, on behalf of Stuart, had argued that the re-established circuit court was unconstitutional because the legislation restoring it—the repeal of the Judiciary Act—was unconstitutional. Marshall had rejected Lee’s challenge to the constitutionality of his court on the ground that Lee’s plea was “insufficient,” and he found for Laird.

Lee now renewed his constitutional assault in the Supreme Court. He maintained that the repeal legislation was unconstitutional for two reasons, and therefore, since Marshall had been riding circuit, his court had no jurisdiction. First, Lee told the justices, the repeal law unconstitutionally eliminated the positions of the sixteen new federal appellate judges pursuant to the law. The Constitution guaranteed them life tenure, Lee claimed. “This provision of the constitution was intended to place the judges beyond the reach of executive power, of which the people are always jealous, but also to shield them from the attack of that party spirit which always predominates in popular assemblies.” Lee pointedly invoked speeches given by John Marshall and James Madison (the defendant in Lee’s other pending constitutional case) during the Virginia ratification debates.

Second, Lee continued, the repeal legislation was unconstitutional because requiring the Supreme Court justices to ride circuit was unconstitutional. “[T]he laws are also unconstitutional,” Lee explained, “because they impose new duties upon the judges of the Supreme Court, and thereby infringe their independence; and because they are a legislative instead of an executive appointment of judges of certain courts.” Lee now directed his remarks to his close friend Chief Justice John Marshall, who had presided on the circuit court. “The act of 29th April, 1802, appoints ‘the present Chief Justice of the Supreme Court,’ a judge of the court thereby established. He might as well have been appointed a judge of the circuit court of . . . the Mississippi territory.” And Lee raised the prospect that a judge who sat on circuit court could not impartially review his own opinion—in this context, an unmistakable reference to Marshall. “A party in this court has a right to have his case heard by six judges,” Lee elaborated. “He has a right to an unbiased court whether the whole six sit or not. A judge, having tried the case in the court below, and given judgment, must be in some measure committed; he feels an anxiety that his judgment should be affirmed.”

Lee’s opposing counsel responded that the Constitution gave Congress broad powers to shape the federal judiciary and that the practice of justices riding circuit was permissible, long-standing, and accepted. Lee’s parting shot in rebuttal was sharp and concise: “[T]he act of 1802 strikes off sixteen judges at a stroke, drives them from their offices, and assigns their duties to others. An error was committed in 1789. That act was unconstitutional, but the act of 1801 [creating the midnight judges] restored the system to its constitutional limits.”

Marshall must have secretly chuckled at the sight of his old friend before the Court again. Lee appeared as a lawyer in several Supreme Court cases during that February sitting, in addition to Marbury. Supreme Court litigation at the time was incestuous, featuring not only the same lawyers in case after case but, frequently, the same litigants. Robert Hooe, one of Marbury’s co-plaintiffs, had two other cases heard by the Supreme Court that sitting, both of which concerned his commercial interests.

Despite the earlier anticipation about how the Supreme Court would resolve a challenge to the constitutionality of the repeal legislation, there was no public comment or attention to the arguments in Stuart v. Laird. The pending “mandamus case”—Marbury v. Madison—now was the center of attention for those awaiting a confrontation between the Supreme Court and Jefferson and his allies.

On the morning of Thursday, February 24, 1803, at 10 A.M., Chief Justice John Marshall called the Supreme Court to order in the lobby of Stelle’s Hotel. Once again, the senior associate justice, William Cushing, was missing, but the other four justices—William Paterson, Samuel Chase, Bushrod Washington, and Alfred Moore—were in attendance with Marshall. The chief justice announced that the Court would render its judgment in the case of Marbury v. Madison. All in attendance wondered what the Court would say about this frontal challenge to Jefferson and Madison and their adamant refusal to allow the “midnight” justices of the peace to take their offices.