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After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801

Jed Glickstein

Yale University - Law School

April 13, 2011

Yale Journal of Law & the Humanities, Vol. 24 (2012)

A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.

Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.

Number of Pages in PDF File: 35

Keywords: Midnight Judges, Judiciary Act of 1801, John Marshall, Samuel Chase, Federalist Party

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Date posted: April 19, 2011 ; Last revised: October 12, 2012

Suggested Citation

Glickstein, Jed, After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801 (April 13, 2011). Yale Journal of Law & the Humanities, Vol. 24 (2012). Available at SSRN: https://ssrn.com/abstract=1809207 or http://dx.doi.org/10.2139/ssrn.1809207

Contact Information

Jed Glickstein (Contact Author)
Yale University - Law School ( email )
127 Wall St.
New Haven, CT 06511
United States

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