History of the Midnight Justices: Who Appoints the Supreme Court?

Midnight Justices

1st Meeting of the Supreme Court


In the news, you’ve seen the topic of “court-packing” related to the U.S. Supreme Court.

But is this a new thing, and what does it mean?

Court-packing involves one branch of the government proposing to change the courts’ structure by either expanding or decreasing the number of judges.

As discussed in today’s “court of public opinion,” it means manipulating the number of Supreme Court seats primarily to alter the Court’s ideological balance.

History Behind Supreme Court Appointments

Oliver Ellsworth

Oliver Ellsworth

In 1801, during the closing weeks of his Presidency, the second President of the United States, John Adams, appointed a new chief justice to the Supreme Court, replacing the ailing Chief Justice Oliver Ellsworth, who had announced his retirement. This appointment angered his then-rival and subsequent president, the Democratic-Republican Thomas Jefferson.

John Marshall

John Marshall

Adam’s Secretary of State, John Marshall, became the new Chief Justice.

Jefferson despised Marshall, even though Marshall was his cousin; Jefferson demonized Marshall by calling him “anti-democratic.” Ironically, it would be Marshall who would swear in Jefferson at his Presidential inauguration.

But what could Jefferson do?

Adams’ action was supported by the 11-year old U.S. Constitution that stipulated it was the sole prerogative of a sitting President to appoint justices to the highest court of the land:

US Constitution“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.” — Article II, Section 2


As the first President of the United States, George Washington had the luxury of appointing all the initial justices of the Supreme Court. But Jefferson, as the third President of the U.S., entered the presidency with a Supreme Court Chief Justice appointed by his fellow-Founder but now political rival, following the bitter election of 1800.

Jefferson had been Adams’ Vice President. The two men were now rivals with polar opposite political views — and Jefferson had beaten the Federalist Adams in the contentious election of 1800.


What Adams Did with the Supreme Court

John Adams

John Adams

But that wasn’t all. To add insult to injury, Adams and the Federalists in Congress voted to reduce the number of Supreme Court seats from six to five following the next vacancy so that Jefferson couldn’t appoint more. In this way, he intended that the incoming President would not be able to change the completion of the judiciary by putting the new maximum number of justices in place ahead of the Presidential Inauguration.

  • You could say they “un-packed the court.”

And be it further enacted, That from and after the onext vacancy that shall happen in the said court, it shall consist of five justices only; that is to say, of one chief justice, and four associate justices.” —  Judiciary Act, Section 3

They pushed through this “Midnight Justices” Judiciary Act of 1801, adding 16 circuit court judges and other judicial appointees. Even after Adams had left office, they could hold office as long as they demonstrated “good behavior.” Essentially they all had lifetime terms.

  • So you could say he “packed the courts.

This new Judiciary Act gave these courts increased jurisdiction over land and bankruptcy cases. The law added six new Federal circuits with sixteen new judges. The Federal courts now had greater authority at the expense of the states. As a final measure, they also added dozens of new justices of the peace to the District of Columbia.

It took Adam just 19 days to appoint these new justices.

Jefferson complained that this judiciary act was “a parasitical plant engrafted” on the “judicial body” to be an eleventh-hour effort to thwart him. He added that

“… the Federalists have retired into the judiciary as a stronghold.”

Subsequently, he wrote to his protege James Madison,

“It is difficult to undo what is done.”


What Jefferson Did with the Supreme Court

Thomas Jefferson

Thomas Jefferson

Thomas Jefferson pushed for the impeachment of Justice Samuel Chase, an active campaigner for John Adams, whom Jefferson disliked. Jefferson succeeded, Chase became the only Supreme Court Justice to be impeached, even though he was one of the original signers of the Declaration of Independence. Chase declared that the country was at risk of descending into a

“… mobocracy, the worst form of all government.”

Interestingly, the Senate trial to impeach Chase in 1804 was presided over by Vice President Aaron Burr. Burr was in a sticky situation; he was worried about the possibility of facing murder charges for shooting Alexander Hamilton in a duel.

The Democratic-Republicans pushed through the Judiciary Act of 1802, which repealed the Judiciary Act of 1801, eliminating the new judges. Jefferson succeeded in being able to restore the sixth seat to the Supreme Court and added a seventh. Ultimately, by the time he left the Presidency, he had appointed three Supreme Court Justices.

  • You could say that Jefferson “re-packed the court.”

In the end, the court-packing didn’t work for Adams; he had not successfully secured the commitments of all his court appointees before he left office. Several of them declined, and those who accepted did not challenge their removal during the Jefferson administration.

Except for one of the Midnight Justices. And Adams’ appointment proved to be one of the most important in U.S. history: John Marshall as Chief Justice of the Supreme Court. Jefferson considered this staunch Federalist as nothing less than an

“… absolute terrorist.”


What Marshall Did with the Supreme Court

John Marshall Supreme Court

John Marshall before the Supreme Court

Marshall presided over a hotly contested case where his final opinion served to significantly expand the prestige and power of the Court by asserting that the judiciary has the power to say what the law is and, if necessary, to overturn acts of Congress that it finds unconstitutional.

He would serve for thirty-four years, longer than any Supreme Court Justice in American history.


The Supreme Court’s size has changed seven times in our history, though it has remained fixed for a century and a half, with nine justices since 1869.


Bill Petro, your friendly neighborhood historian

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About billpetro

Bill Petro writes articles on history, technology, pop culture, and travel. He has been a technology sales enablement executive with extensive experience in Cloud Computing, Automation, Data Center, Information Storage, Big Data/Analytics, Mobile, and Social technologies.


  1. pkstew on October 31, 2020 at 7:19 am

    Great article Bill! Really enjoyed reading it!

    • billpetro on October 31, 2020 at 11:48 pm


      Glad you enjoyed it!


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