John Marshall: The Greatest Lame Duck Appointment of All Time

This is the first of four short essays on the Scalia crisis.

I have never felt any enmity towards you Sir for being elected president of the United States. but the instruments made use of, and the means which were practised to effect a change, have my utter abhorrence and detestation, for they were the blackest calumny, and foulest falsehoods.

Abigail Adams to Thomas Jefferson

John Adams and the Federalists were appalled when Thomas Jefferson was elected to the Presidency in the autumn of 1800. They regarded Jefferson as a dangerous radical who was bent on destroying Federalist financial system (the national debt, the National Bank of the United States), and who might sweep all Federalist bureaucrats out of office.

Adams and his Federalist partisans in Congress decided to forestall what Jefferson was calling "the second American revolution," by packing the court system with men who were known Jefferson detractors.

In haste and even some desperation, Adams nominated Virginia's John Marshall to be Chief Justice of the United States. This happened after the presidential election of 1800, and just a few weeks before Jefferson was inaugurated as the Third President of the United States. Now THAT'S a lame duck appointment! 

Marshall was confirmed by the Federalist (lame duck) Senate on January 27, 1801, several months after Jefferson won the election.

Jefferson cried foul. In a letter to Abigail Adams on July 1, 1804, Jefferson wrote, "I can say with truth that one act of Mr. Adams's life, and one only, ever gave me a moment's personal displeasure. I did consider his last appointments to office as personally unkind. They were from among my most ardent political enemies, from whom no faithful cooperation could ever be expected, and laid me under the embarrassment of acting thro' men whose views were to defeat mine; or to encounter the odium of putting others in their places."

Because he was an unusually civil man, and because it was the early Nineteenth Century (the age of Jane Austen), Jefferson expressed his anger in hurt in this somewhat periphrastic way. Notice that he did not mention his distant cousin John Marshall by name.

But he could not let his anger go. "It seemed but common justice," he continued, "to leave a successor free to act by instruments of his own choice."

Think about this for a moment. John Adams had been repudiated by the American people. He was not in the last months of his term, but in the last weeks, AFTER he had been defeated by Jefferson in the election of 1800. Nevertheless, Adams made a range of "midnight appointments," a few of them in the last days and even last hours of his troubled one-term presidency. 

The principal midnight appointment, John Marshall, turned out to be one of the greatest, if not the greatest, justice of the Supreme Court in American history. He really was an avowed enemy to Thomas Jefferson, and he really did refuse to provide "faithful cooperation" during Jefferson's eight years as President.

Who was right? Both Adams and Jefferson had legitimate grievances against the other, and there is no question that Adams appointed Marshall to the court to stymie and embarrass Jefferson. In other words, Adams was not appointing Marshall out of any pure sense that he was the best man in America for so important a post. He wanted to damage his former friend Jefferson, who had undermined his administration and who had now displaced him as President. That Marshall turned out to be an outstanding justice was no part of Adams's strategy.

Abigail Adams replied to Jefferson's letter on July 1, 1804. She not only put Jefferson firmly--even rudely--in his place, but gave him a little course in U.S. Constitution 101:

"The constitution empowers the president," she wrote, "to fill up offices as they become vacant. It was in the exercise of this power that appointments were made, and Characters selected whom Mr. Adams considered, as men faithful to the constitution and where he personally knew them, such as were capable of fulfilling their duty to their country."

Then Mrs. Adams played the ultimate American trump card. "This was done by president Washington equally, in the last days of his administration, so that not an office remained vacant for his successor [John Adams] to fill upon his coming into office."

Abigail Adams was right! The President of the United States is the head of the American government from the moment he is inaugurated (then March, now late January) until the moment his successor is nominated, and that person is not only empowered by the Constitution to perform all presidential functions during that swatch of time, but required to perform those duties.

Adams had every right to appoint John Marshall to the Supreme Court. And President Obama has every right--and a constitutional duty--to appoint a successor to the seat filled for thirty years by Antonin Scalia.

The Republicans (and Jefferson) can squawk all they want, but the clear meaning of the U.S. Constitution favors a sitting President. The Senate can refuse to affirm the President's appointee, but THAT would be a greater offense to the U.S. Constitution than the President's timely appointment.
 
And who knows? Maybe the next great justice of the Supreme Court, a Twenty-First Century John Marshall, is in the wings.


Read the entirety of Abigail Adams's blistering July 1, 1804, letter to her former friend Thomas Jefferson.

Further Reading:

The Adams-Jefferson Letters: The Complete Correspondence Between Thomas Jefferson and Abigail and John Adams
edited by Lester J. Capon

What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States
by James F. Simon

America's Constitution: A Biography
by Akhil Reed Amar