Judicial Review and Five Million Acres: an Appellate Tale

By Steve Emmert, The Appellate Issues (ABA Judicial Division) – September 2016

Late on a sunny morning in early June 2019, Justice Elena Kagan gazes out the window of her chambers, lost in thought. Her mind has been drifting for a few moments in the self-hypnosis that she finds mentally refreshing from time to time.

Her conscious mind returns to the fore; she snaps out of her reverie. She reaches across her desk, grabs her cell phone, and hits a preset number. A male voice answers:

“Elena! How are you?”

“Great, Barack; I’m doing fine. How was Malia’s second year at Harvard?”

“Dean’s List, I’m happy to say.”

“I expected no less. Even if you didn’t set such a high bar, I know The Boss would never tolerate anything less.”

“True; Michelle would be all over her if her grades dropped. So, what’s up?”

“I’m working on the Court’s majority opinion in this Term’s huge First Amendment case, Fox News v. Gaga, and I’d like your advice on how best to shape some of the primary holdings. I checked with Elizabeth Warren and got some great ideas from her, but I’ll be grateful for your insight, too …”

* * *

The above is fantasy, of course. Supreme Court justices would never consult ex-presidents or politicians for input on how to decide an appeal; they keep their deliberations strictly in-house. It’s always been that way in American jurisprudence.


* * *

In 1649, King Charles II seethed over the execution, earlier that year, of his father, Charles I. During the course of his scheming to regain the throne that Oliver Cromwell and the English Commonwealth withheld from him, the new nominal monarch had time to sign a land grant for five million acres in the Virginia colony across the Atlantic.

It took eleven years – until the English Restoration in 1660, when Charles formally took the throne – before that grant took effect. When it did, the several recipients of the grant became at least potentially wealthy, as they owned mostly raw land that comprised much of Northern Virginia, including property that would eventually hold the Pentagon, Arlington Cemetery, Washington’s birthplace and his home at Mount Vernon, and much, much more. The property stretched from the Chesapeake Bay into what is now West Virginia.

By 1719, the land’s ownership had been consolidated in a single man – Thomas, Lord Fairfax, the only English peer to make his permanent home in America in the late Colonial period. Lord Fairfax sold or leased parts of the tract until his death in 1781, seven weeks after the surrender at Yorktown. In his will, he left his immense holdings to a clergyman – his nephew, Denny Martin Fairfax.

The now-wealthy vicar eventually found himself on the business end of a bill in ejectment in a Virginia court. The new Commonwealth of Virginia, acting pursuant to one of its statutes enacted during the Revolution, had confiscated the property, since it was held by a foreigner – and a British Loyalist, at that. Several men who had purchased parts of the tract from the Commonwealth were trying to kick the vicar out.

Denny Fairfax defended the suit by relying on two treaties between the British Crown and the new nation, validating Colonial-era land grants. Those treaties, he argued, trumped Virginia law. A Virginia trial court agreed, and ruled in favor of Fairfax. The Court of Appeals [now Supreme Court] of Virginia reversed, holding that the treaty didn’t apply to the Fairfax grant. Hunter v. Fairfax’s Devisee, 1 Munf. (15 Va.) 218 (1810). The Virginia appeal was argued twice, 13 years apart with no intervening decision. (Remember that, the next time you find yourself waiting impatiently for a ruling in your appeal.) Denny Fairfax had died in 1800, still waiting for a ruling.

The Supreme Court of the United States took the case and reversed, finding that the treaty really did apply, so Fairfax’s heir, Philip Martin, got to keep his lands; the Virginia purchasers were out of luck. Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. (7 Cranch) 603 (1813). The Clerk of what we now know as SCOTUS issued a suitably dignified mandate, politely commanding the Court of Appeals in Virginia to regard its considered judgment as having been reversed. An order like that in the 21st Century would be newsworthy but hardly controversial in its own right.

But in 1813, the issue of SCOTUS review of state-court rulings was anything but settled. The Virginia judges looked at the mandate and wondered what to do. They eventually called for oral arguments from the parties on whether the court had to obey such an audacious directive. They requested input from the Virginia bar as a whole, not just from the counsel employed by the litigants. Lawyers named Leigh and Wirt appeared for Fairfax’s devisee, Martin. A lawyer named Williams argued on behalf of Hunter, and he was joined by two volunteer attorneys who came in response to the public invitation – Nicholas and Hay, two veterans of the Virginia bar.

The Virginia court entertained oral argument for six days – from Thursday, March 31 to Wednesday, April 6, 1814.1  This despite the fact that the merits of the case were no longer in issue; the sole question to be adjudicated was whether, in a new, untested society of dual sovereigns, SCOTUS had the power to tell a state court what to do.

The Virginia court took its time with the case under advisement. The judges pondered the matter for a year and a half. (Let’s be fair to them: British Army, Marines, and Royal Navy forces had invaded Virginia in the interim, on their way to burn Washington, DC. What we know as Real Life did not come to a halt merely because the judges had a momentous decision on their hands.)

During this time, the most influential member of the Virginia court was its presiding judge, Spencer Roane. Reports have occasionally surfaced that Thomas Jefferson had favored appointing Roane as Chief Justice of the United States, though there’s no written evidence to back that up. In any event, he never got the chance; the retirement of Chief Justice Oliver Ellsworth in 1800 allowed a very lame-duck John Adams to nominate John Marshall for the position, depriving Jefferson of his choice and changing the course of American law.

Roane badly wanted to thumb his nose at SCOTUS in the litigation, but he was sensible enough to get a reality check first. He placed the Nineteenth Century equivalent of cell-phone calls to Jefferson – who had left the White House six years earlier – and James Monroe, then serving as Secretary of War and effectively as Secretary of State at the same time. Only after getting their input did he release his opinion in Hunter v. Martin, Devisee, 18 Va. (4 Munf.) 1 (1815), a full 20 months after oral argument.

The Virginia judges issued seriatim opinions – four judges, four opinions – each refusing to recognize the mandate’s legitimacy. Roane’s opinion alone spans almost 30 pages of what would eventually become Virginia Reports. It contains the flowery judicial rhetoric that we attorneys have become accustomed to seeing in early opinions. For example, here’s his response to an argument by counsel for the appellee, who had warned of the political consequences of a reversal in the context of the War of 1812:

They should also have recollected, that there is a Charybdis to be avoided, as well as a Scylla; that a centripetal, as well as a centrifugal principle, exists in government; and that no calamity would be more to be deplored by the American people, than a vortex in the general government, which should ingulph and sweep away, every vestige of the state constitutions.

18 Va. at 26. (They don’t write ‘em like that anymore, folks.)

Roane turned to sources from the English common law to The Federalist Papers to Aesop’s Fables in order to reach the conclusion that SCOTUS had no authority under the U.S. Constitution to review the decision of a state court. This, of course, was one of the important questions surrounding federalism in the early days of the Republic, when its citizens – including jurists – were feeling around in the dark to figure out how this new form of government worked.

Anyone who attended law school knows how this dispute came out: SCOTUS handed down Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816), ruling that the Supreme Court does, after all, have the power to review decisions by state courts of last resort, at least where those decisions turn on issues of federal law. Along with Marbury v. Madison, Martin is one of the pillars of American judicial review; a decision we now take for granted.

There’s one last anecdote in this tale. Marshall was Chief Justice when Martin v. Hunter’s Lessee came down. But Justice Joseph Story wrote the opinion, joined by the other five associate justices.  Marshall took no part in the decision. You see, back in the 1790s, he and his brother had contracted with Denny Martin to buy much of the Fairfax tract. So he stepped away from the case, and watched while his colleagues unanimously voted to make him a wealthy man.

* * *

Most law students never pause to learn this elaborate backstory, with its fascinating twists and turns. But the real lesson of this tale is the extent to which appellate practice has changed since Martin came down, 200 years ago this year.

For example, few modern readers would ever imagine Justice Kagan’s repeating Judge Roane’s act of “judicial expediency” in asking his friends Tom and Jim how they thought he should rule. Modern appellate advocates might not know what to do with an essentially unlimited oral argument – six days! – or the ability to appear off the street and contribute argument to someone else’s case of great public import.  The idea of a judicial turf war might not be quite so foreign, but the Virginia court’s utter rejection of SCOTUS authority would be unthinkable today.

Of course, it would be a mistake to assume that even our modern, evolved appellate system will remain intact indefinitely. Early in the 23rd Century, our appellate descendants may well look back on today’s appellate practice and wonder, “How could they ever abide by such crude procedures …?”

1 April 6 was coincidentally the date on which the Emperor Napoleon abdicated, accepting (temporary) exile to Elba.  This enabled England to send its crack troops to America late in the War of 1812.