What did Marbury do next?

[Edward A Hartnett]

I think it highly unlikely -- even today -- that you could find a judge to 
swear in someone who lacked a commission.  How many of you would buy or 
sell a house (or represent a buyer or seller at a closing) without the 
seller producing a deed?

Anyone who thinks that Marbury could have been sworn in should consider 
the situation of Senator Ray Greene.  He had been nominated and confirmed 
by the Senate as district judge for Rhode Island (and resigned from the 
Senate), but the commission he received from Adams erroneously purported 
to appoint him as a circuit judge.  Jefferson refused to give Greene a 
corrected commission, and instead filled the position to which Greene had 
been confirmed by giving a recess appointment to David Barnes.

If Greene could not be sworn in because of a obvious error in his 
commission, and thereby saw his position filled by someone else, how could 
Marbury possibily have been sworn in without any commission at all?

At the same time, there were supposedly life tenured judges who had not 
only been confirmed and commissioned, but actually deciding cases for a 
year before being tossed out, such as William Tilghman, chief judge of the 
United States Circuit Court for the Third Circuit.  See, e.g., 
Hollingsworth v. Duane, 12 F. Cas 367 (C.C. Pa. 1801). 

If the Supreme Court cooperated in the displacement of already-sitting 
judges such as Tilghman -- and the displacement of almost-judges such as 
Greene --  why would anyone think that some judge would swear in Marbury 
who had no commission and lost his case in the Supreme Court?

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
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