Jed Glickstein posts a cool history piece about the Midnight Judges that preceded Marbury v. Madison, and how they were involved in the repeal of the repeal of the Judiciary Act of 1801. We all know about William Marbury, whose comission Secretary of State/Chief Justice Marshall never delivered. But what about the Judges that did timely receive their commissions? How did the midnight judges respond to the Republicans repealing the Judiciary Act of 1801 that created their positions?

Here is the abstract:

A student of law or American history almost always encounters the midnight judges as a mere footnote to Marbury v. Madison. Yet despite an outpouring of work on the conflict between the Republicans and the federal judiciary in the wake of the Election of 1800, insufficient attention has been paid to the judges’ role in the crisis they served to precipitate. This Article aims to correct that oversight.

Drawing on a wide variety of documentary evidence, including a cache of archival letters between the judges that has escaped notice to date, it sketches a comprehensive picture of the judges’ efforts in defense of their offices. It also adds important new details and contextualizes others, and corrects a persistent misconception in the existing literature. And, by taking a broader perspective than the standard Supreme Court-centered account of the repeal of the Judiciary Act of 1801, it highlights the ways in which practical, political, and constitutional factors shaped and constrained the (non)resolution of the episode’s core issue: the constitutionality of abolishing the office of a sitting judge. This new evidences argues for a revised understanding that puts the midnight judges, if not on the marquee, at least in a supporting role in working out the meaning of the repeal.