Jed Glickstein


Most law students encounter the midnight judges, if at all, in a footnote to "perhaps the most famous case in American history." In the words of the judges' foremost historiographer, "the appointment of the 'midnight judges' has lingered because it affords the appropriate essential for a springboard introduction to an analysis of John Marshall's decision in Marbury v. Madison." To summarize: Thomas Jefferson and the Democratic-Republicans defeated the reigning Federalist Party, led by President John Adams, in the election of 1800. In response, the lame-duck Federalists tried to shore up their position in the short time before Adams left office. Just a few weeks before Jefferson's inauguration, the outgoing Federalist Congress passed the Judiciary Act of 1801, creating sixteen new federal circuit judgeships. In a separate act, Congress created three additional circuit judgeships and over forty justices of the peace for the District of Columbia. Adams hastily filled as many of these positions as he could with his supporters. As a Federalist senator famously observed to a friend, his party was "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship thro the storm?"

In short order, however, President Jefferson and the Republicans regained the initiative. Shrugging off the Federalists' protests, the new Congress repealed the Judiciary Act, abolished the new courts, and put the so-called "midnight judges" out of their jobs. Jefferson also ordered his Secretary of State to ignore some signed commissions that the Adams administration had forgotten to deliver to justices of the peace during the chaotic changeover, leading William Marbury and several other would-be JPs to sue to get hold of their commissions. Marbury lost, but in deciding his case Chief Justice John Marshall promulgated what has become the classic statement of judicial review, the proposition that courts have the power to review the constitutionality of acts of Congress.