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University of Minnesota Law School Scholarship Repository Constitutional Commentary 2003 Not the King's Bench Edward A. Hartnett Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Hartnett, Edward A., "Not the King's Bench" (2003). Constitutional Commentary. 303. https://scholarship.law.umn.edu/concomm/303 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NOT THE KING'S BENCH Edward A. Hartnett* Speaking at a public birthday party for an icon, even if the honoree is one or two hundred years old, can be a surprisingly tricky business. Short of turning the party into a roast, it seems rude to criticize the birthday boy too harshly. On the other hand, it is at least as important to avoid unwarranted and exaggerated praise.1 The difficult task, then, is to try to say something re­ motely new or interesting while navigating that strait. The conference organizers did make it easier for me in one respect: My assignment does not involve those ideas for which Marbury is invoked as an icon. It is for others to wrestle in well­ worn trenches with exalted arguments about judicial review and its overgrown descendent judicial supremacy, while trying to avoid unseemly criticism or fawning praise. I, on the other hand, am to address more technical issues involving section 13 of the Judiciary Act of 1789 and its provision granting the Supreme Court the power to issue writs of mandamus. The proper interpretation of section 13 has continued to be of interest long after Marbury, largely because the question of judicial review of an Act of Congress only arises after that Act is interpreted. That is, a court must first interpret a statutory provi­ sion before it is confronted with the choice of whether to follow that statutory provision or instead follow a constitutional provi­ sion that would call for the case to be decided differently. As anyone attending this birthday party already knows, the court in Marbury interpreted section 13 of the Judiciary Act of 1789 to provide the Supreme Court with original jurisdiction to issue the prerogative writ of mandamus to federal officers such • Professor, Seton Hall University School of Law. Thanks to Howard Erichson, James Pfander, Robert Pushaw, participants in a faculty workshop at Notre Dame Law School, and the other celebrants at the birthday party for helpful comments. 1. See, e.g., Adam Nagourney & Carle Hulse, Divisive Words: The Republican Leader; Bush Rebukes Lott Over Remarks on Thurmond, N.Y. TIMES Al (Dec. 13, 2002) (recounting President Bush's criticism of Senator Lott's comments at Senator Thur­ mond's one hundredth birthday party). 283 284 CONSTITUTIONAL COMMENTARY [Vol. 20:283 as Secretary of State James Madison, but refused to issue such a writ because to do so would exceed the original jurisdiction per­ mitted the Supreme Court by Article III of the Constitution. For years, scholars have contended that Marshall's interpre­ tation of section 13 was seriously flawed, if not downright dis­ honest. Recent scholarship, however, has defended Marshall's interpretation of the statute as correct. My point today is not so much to attempt to resolve this dispute, but instead to suggest that what is particularly worth celebrating on Marbury's birthday is that the Supreme Court cared what that statute said, believed that what that statute said mattered, and rejected a view of itself as this nation's equivalent of the King's Bench. I. SECTION 13 OF THE JUDICIARY ACT OF 1789 The Judiciary Act of 1789 was no minor piece of legislation. Although commonly known by that name, its formal name bet­ ter reveals its importance, "An Act to establish the Judicial Courts of the United States." Until it was signed into law on September 24, 1789, the government under the new constitution had no judicial branch. Congress had convened on March 4, 1789, although obtaining a quorum took a bit longer, and Presi­ dent Washington was inaugurated on April 30, 1789. 2 But until Congress and the President acted to create the federal judiciary, it did not and would not exist. This was obviously true as to the inferior federal courts, which are constitutionally optional. Unless and until the law­ making process specified in Article I created inferior federal courts, there would be no such courts. But it is also true as to the Supreme Court, which the constitution requires but says re­ markably little about, omitting even such obviously necessary specifics as the number of judges that constitute the Supreme Court. Until an Act of Congress spelled out such specifics, there would be no Supreme Court either. The Judiciary Act of 1789, then, created the federal judici­ ary. It provided that the Supreme Court would consist of a chief justice and five associate justices.3 It divided the country into thirteen districts, with a district court and district judge for each 2. See THE ALMANAC OF AMERICAN HISTORY 153 (Arthur M. Schlesinger, Jr. ed., 1993). 3. Judiciary Act of 1789, § 1, 1 Stat. 73. 2003] NOT THE KING'S BENCH 285 district.4 The districts were then grouped into three circuits, called the eastern, middle, and southern circuits.5 But it did not provide for the appointment of any circuit judges; the Supreme Court justices and the district judges were the only national judi­ cial officers under the Judiciary Act of 1789. It did not even cre­ ate circuit courts for each of these circuits, which is why we never hear of cases decided by the United States Circuit Court for the Middle Circuit. Instead, it provided for a circuit court for each district (other than the districts of Maine and Kentucky) consisting of two justices of the Supreme Court and the local dis­ trict judge. The district courts were given jurisdiction of minor criminal cases, as well as admiralty and maritime cases,6 while the circuit courts were given jurisdiction of diversity suits, and suits by the United States (both subject to a five hundred dollar amount in controversy requirement), plus the entire range of criminal cases.7 The Supreme Court had appellate jurisdiction over certain civil actions decided by the circuit courts,8 as well as appellate jurisdiction over final decisions by state courts reject­ ing federal claims and defenses.9 All of these federal courts were given the power to issue all writs, "not specially provided for by statute," which were "neces­ sary for the exercise of their respective jurisdictions, and agree­ able to the principles and usages of law," and all of these judges were given the power to grant writs of habeas corpus to inquire into the cause of commitment of those in federal custody. 10 4. Judiciary Act of 1789, § 2. Nine of the districts-the districts of New Hampshire, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina and Georgia-were coextensive with state lines. The other four districts were created by subdividing two states into two districts each. The state of Massachusetts contained both the district of Maine and the district of Massachusetts, while the state of Virginia con­ tained both the district of Kentucky and the district of Virginia. No district courts were created for Rhode Island or North Carolina, as neither state had yet ratified the new con­ stitution. 5. Judiciary Act of 1789, § 4. The eastern circuit consisted of the districts of New Hampshire, Massachusetts, Connecticut and New York, the middle circuit of the districts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia, the southern circuit of the districts of South Carolina and Georgia. The districts of Maine and Kentucky were not allocated to any circuit. 6. Judiciary Act of 1789, § 9. A minor criminal case was one "where no other pun­ ishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted." 7. Judiciary Act of 1789, § 11. 8. Judiciary Act of 1789, § 22. Significantly, there was no appeal from a circuit court judgment in a criminal case. 9. Judiciary Act of 1789, § 25. 10. Judiciary Act of 1789, § 14. 286 CONSTITUTIONAL COMMENTARY [Vol. 20:283 The point of this thumbnail sketch of the Judiciary Act of 1789 is to provide context for Marbury, both by recalling how different the federal judicial structure at that time was from the structure we now seem to take for granted, and by situating sec­ tion 13 of the Judiciary Act in the Act as a whole. Let us turn, then, to section 13 itself. Section 13 of the Judiciary Act of 1789 provides: And be it further enacted, that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citi­ zens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic ser­ vants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury.
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