Our study of Marbury v. Madison begins with the presidential election of 1800. In that race, candidates Thomas Jefferson and Aaron Burr received the same number of electoral votes. This tie threw the election into the House of Representatives, which was still controlled by the outgoing Federalist party. Ultimately, Jefferson was elected President on the thirty-sixth ballot, a mere two weeks before Inauguration Day.
Before the inauguration, the lame duck Federalist Congress enacted several last- minute laws to preserve its power. For example, the Judiciary Act of 1801 created forty-two new federal judgeships. President John Adams nominated Federalist sup- porters to fill these positions. The Federalist-controlled Senate promptly confirmed the so-called “midnight judges.” On the eve of Jefferson’s inauguration, President Adams signed the judges’ commissions.
At the time, John Marshall served as both the Chief Justice and the Secretary of State. In his latter role, Marshall was responsible for delivering the signed commissions to the new judges.