What did Marbury do next?

[Edward A Hartnett]

I understand that Tilghman lost his office because of the repeal of the JA 
of 1801.  (I wouldn't say "replaced" because no one was then appointed 
circuit judge; instead, the Supreme Court Justices resumed riding circuit, 
holding the old and restored circuit courts with the local district 
judge.)  Does anyone doubt that he (and the other circuit judges who were 
removed) had a stronger claim to office than Marbury? 

My point is both formal and political.

As a formal matter, commissions mattered (and I think still do).  Greene's 
commission had an obvious formal error, and that meant he was out of luck.

As a political matter, life tenured  circuit judges were being tossed out 
of office, Supreme Court Justices actively went along with that removal 
(by holding the  old and restored circuit courts), and, by the way, a 
Supreme Court Justice was about to be impeached. 

In that environment, I think it is completely implausible that Marbury, 
armed with nothing but dicta rendered in a case that he lost , could 
convince any judge to swear him into office. 

Why does anyone think that it is more likely that some judge would have 
sworn Marbury into office (if only he had asked) than that Greene would 
have been sworn in or that Tilghman (and the other removed circuit judges) 
would have remained in office? 

What judge do you have in mind to do the swearing in?  One of the removed 
circuit judges?  One of the DC Circuit Judges, who could be as easily 
removed as the other circuit judges?  A Supreme Court Justice who had just 
ruled against giving Marbury any relief, who had cooperated with the 
removal of the circuit judges, with impeachment looming?  A district judge 
who had just seen the circuit judges removed, and (following the lead of 
the Supreme Court Justices) had also cooperated in that removal by holding 
the old and restored circuit courts with a Justice? Maybe District Judge 
Pickering, before he was convicted by the Senate and removed from office? 
 

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



fishman at duq.edu 
03/11/2007 12:28 AM

To
"Edward A Hartnett" <hartneed at shu.edu>
cc
"guayiya" <guayiya at bellsouth.net>, conlawprof at lists.ucla.edu, 
kurt.lash at lls.edu, conlawprof-bounces at lists.ucla.edu
Subject
Re: What did Marbury do next?





Ed:

But Tilghman was replaced because of the Judiciary Act of 1802 that took
away his and other federal judicial appointments at the time.

Joel


> 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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--
Joel
____________________________________
Joel Fishman, Ph.D.
Asst. Director for Lawyer Services
Duquesne University Center for Legal Information/
Allegheny County Law Library
921 City-County Bldg.
414 Grant St.
Pittsburgh, PA 15219
412.350.5727; fax: 412.350.5889
email: fishman at duq.edu

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