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Are we repeating 1801?


The first few months of 1803 must have been difficult and perhaps even vexing for the relatively new Chief Justice of the United States (that’s the actual title, by the way, not Chief Justice of the Supreme Court).

John Marshall had been in place at the helm of our nation’s highest court since 1801, when he was serving as then-President John Adams’s secretary of state and one of his closest advisors. Due to a sudden illness, the Marshall’s seat on the court was vacant. Additionally, Adams had lost the election of 1800 quite badly. As his term would end in mid-March (as was the timing back then), Adams sought to place as many of his fellow Federalists on the federal bench, including a new chief justice.

President-elect Thomas Jefferson would decry that action, calling it “court packing,” though even he had to admit that a president is, in fact, president until the moment the clock strikes noon on March 4 of the year following the election. News and people traveled slowly back then, and a March start date made sense given how long it would take a newly elected president to be informed of his win, and to put together his transition. We moved the inauguration to January in 1937, when radio, telephones and modern conveyances allowed for a much quicker transition.

So, one of the positions Adams needed to fill was the aforementioned chief justice position, to which he nominated Marshall, albeit with the caveat he continue to perform his secretary of state duties as well as his court duties until his term in Adam’s cabinet came to an end. Today such an appointment would scream conflict of interest, but back then, nothing much was mentioned, and Marshall was unanimously elected to the Supreme Court by the Senate just a week after he was nominated.

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As you can imagine, the final weeks of a presidential term are a bit hectic. Adams nominated quite a few people to judicial positions through, as was the custom at the time, Secretary of State Marshall. Those appointments were then sent to the Senate, as per the Constitution, for advice and consent.

But in the rush, four of the nomination packages didn’t get sent in time, and remained on the desk of the Secretary of State when Jefferson took office on March 4, and his person, James Madison, assumed the top job at the State Department. Madison asked Jefferson what he wanted done with the remaining Adams nominations, and, not surprisingly, Jefferson said to ignore them.

Now, the Federalists, as they were leaving office (for the last time, the party was effectively done), had previously passed a law that basically required any Secretary of State to forward any judicial nominations he had received to the Senate for consideration. William Marbury was one of the four, and he really wanted one of the Justice of the Peace jobs in Washington D.C., as he had been promised by the Adams folks.

So, Marbury sued Madison, in hopes of getting a judicial order that he be given his job. When the case finally arrived at the Supreme Court in February of 1803, Marshall was in a tough spot. The law was fairly clear and asserted Madison must submit Marbury’s nomination to the Senate. But the problem was President Jefferson (who despised his fifth-cousin John Marshall and called him “that gloomy malignity”) had made it clear he had no intention of following the SCOTUS order, even if he was ordered to give Marbury his commission.

Thus, Marshall was trapped. Option A was to follow the law explicitly and to order Jefferson to deliver. Option B was to find against Marbury, out of fear the president would ignore the court, rendering it essentially powerless forever. Either choice would be devastating to the judicial branch for decades or even centuries to come.

Faced with those two terrible options, Marshall chose Option C.

His opinion, unanimously adopted by the entire 5-member Court, found the actual law that required Jefferson to deliver those missing four commissions was itself unconstitutional, in that it essentially allowed one branch of government to have a permanent veto over another branch. It’s a bit more complicated than that, but the basic idea is Marshall, in an effort to save the court, enshrined the vital doctrine of judicial review within the powers of the judicial branch — the ability to rule a law unconstitutional.

Which, of course, brings me to modern day Alabama, so to speak…

You, kind reader, are likely familiar with the term gerrymandering. Named after founding father Elbridge Gerry, gerrymandering is the shaping of elective districts in such shapes as to favor one political party over another. If you don’t get that idea, just Google “gerrymandering” and you’ll see some amazingly oddly shaped districts proposed by various political parties to help them win, frankly, more seats in the Congress than their numbers alone would suggest. It’s a big problem.

In a very surprising move by today’s hard-right and Trumpian Supreme Court, said court found the House districts drawn by Alabama’s state legislature were wildly and illegally imbalanced. In a state that has a large African American population, the state lawmakers drew a map that had only a single district that had anything close to a Black majority. The Supreme Court, remarkably, found that to be fundamentally unfair, and ordered the state legislature to rethink and redraw.

And they did…

Now, because of Alabama’s past history of disenfranchising African Americans, any House district redrawing has to be approved at the federal level. And when the feds got a look at the new proposed map, they were startled to see outright defiance of a Supreme Court order. The “new” map still had only one district that was “competitive,” and it actually reduced the percentage of the district that was Black. In other words, the Alabama legislature is openly defying a direct order from the Supreme Court. And for those of you OK with that, I’d ask how you might feel if, say, a more liberal state voted to ban all handguns or AR-15s or beer and ignored a SCOTUS order to the contrary?

Alabama Republican Gov. Kay Ivey made it clear she, and the legislature, had no intention of complying with the order, tweeting the legislature “knows our state, our people, and our districts better than the federal courts or activist groups, and I am pleased that they answered the call, remained focused and produced new districts ahead of the court deadline.”

The next step is predictable. The new map will be challenged in court, and given SCOTUS’s previous direct order, the state will be found at fault. But if Alabama continues to defy, as President Jefferson was apparently ready to do back in 1803, the future is murky at best.

The notion of just ignoring a SCOTUS order is shocking and quite dangerous to liberty. Even if you like this particular decision, because of “states’ rights” or bigotry, be careful how you celebrate. Do we really want a society in which open defiance of the Supreme Court is acceptable actions by elected officials? I would think even the most conservative among you can see the profound danger in that course of actions. We’ll see what happens in Alabama. And we don’t have a John Marshall as chief.

Stay tuned.

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.

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