This Day in Legal History (Marshall Makes Case for Supreme Court in ‘Marbury v. Madison’)

Feb. 24, 1803—In his first, stealth move to simultaneously uphold federal power and to assert the Supreme Court as a partner equal to the President and Congress, Chief Justice John Marshall set down for the first time the concept of judicial review— the ability of the Court to declare a Legislative or Executive act in violation of the U.S. Constitution.

That power, unmentioned in the text of that foundational national document, has been essential in establishing the Court as the ultimate authority of the validity of a law. It has also helped make the Court an eternal bone of contention for political parties.

Marbury v. Madison was the most unorthodox case on which to build a judicial revolution. I can’t think of another important case, for instance, where:

* a justice’s own brother was called on as a witness to verify a fact;

* the justice arguably had his own conflict of interest in this case;

* the Presidential administration being sued was not represented in the courtroom because it wished to confer no legitimacy on the plaintiffs;

* the Attorney General, called as a witness by the plaintiffs, declined to answer because of executive privilege and his Fifth Amendment right against self-incrimination; and

* more importantly, as historian Henry Adams aptly put it in his History of the United States During the Administrations of Thomas Jefferson, “Where a judgment was to turn on a question of jurisdiction, the Court commonly considered that point as first and final.”

In other words, if the Court lacked jurisdiction, the case should proceed no further.

In contrast, Marshall first argued at length that the principal plaintiff, William Marbury, had been damaged when Jefferson’s Secretary of State, James Madison, failed to deliver Marbury's commission as Justice of the Peace in the District of Columbia —but only then stated that the Supreme Court lacked authority in this instance.

Legally, all of the foregoing was highly unusual, even problematic. But, in a case with overwhelming political importance, Marshall’s resolution was shrewd and startlingly successful.

In a sense, the title of the case was a misnomer. The real adversaries were not William Marbury and James Madison but Thomas Jefferson and John Marshall.

Though alike in certain ways—second cousins, slaveholders from the Virginia interior, careless of dress, with a fondness for fine liquor and good company—the two men could not have been more opposed.

Exactly when and how their mutual enmity developed is still disputed by historians. But by the late 1790s, that dislike had hardened into something toxic: differences founded as much on personality as on early American party politics.

In March 1801, when Marshall—appointed Chief Justice just before John Adams turned the Presidency over to friend-turned-rival Jefferson—administered the oath of office to his fellow Virginian, the two men were taking the measure of each other, not realizing that their quarrel over the nature of government would dominate the rest of their lives, and beyond.

Jefferson was the head of the Democratic-Republican Party, which now not only held the Presidency but, for the first time, both the House of Representatives and the Senate.

Marshall was the most significant surviving officeholder in a Federalist Party that, nobody knew at the time, would never dominate the executive or legislative branches of the United States again.

There were few if any Jeffersonian positions that Marshall agreed with, whether it was friendly relations with revolutionary France, rising democratic sentiments across the nation, or states’ rights. More viscerally, the Chief Justice loathed the new President as a faithless friend of Marshall’s commanding officer in the American Revolution and postwar political mentor, George Washington.

Perhaps above all, Jefferson feared Marshall’s formidable intellect and persuasive powers. “When conversing with Marshall,” he observed, “I never admit anything. So sure as you admit any position to be good—no matter how remote the conclusion he seeks to establish—you are gone. So great is his sophistry, you must never give him an affirmative answer, or you will be forced to grant his conclusion. Why, if he were to ask me whether it was daylight or not, I’d reply, ‘Sir, I don’t know. I can’t tell.’”

The outgoing Federalist majority in Congress furnished Jefferson with a pretext to strike back by passing, in the last days of their session, the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointing judges—and, by increasing offices for Federalist party members (including Marshall’s brother James), resulted in what the Chief’s biographer Richard Brookhiser termed a “lame-duck potlatch.”

Jefferson’s Congress retaliated not only by undoing these expanded judicial appointments in the Judiciary Act of 1802, but also by eliminating summer sessions of the Supreme Court. The next chance for Marshall and his like-minded justices to counterattack came when Marbury and several other “midnight judges” appointed in the last hours of the Adams Administration asked the Court for a “writ of mandamus” ordering Madison to deliver their commissions.

Marbury wouldn't have had to do if Marshall hadn't been struggling to deal with the first transition between opposing political parties in Presidential history. 

Serving as Secretary of State before Adams finally prevailed upon him to take over as Chief Justice, Marshall had been so busy affixing his seal to all these commissions that he didn’t ultimately make sure they were delivered. He asked his brother James to do the job. They were still on the secretary’s desk would Madison took over. Jefferson ordered that the commissions stay right there. 

Nowadays, judicial-ethics mavens would have had a fit over Marshall ruling on a case in which he figured, even if peripherally. But this was a new republic, with the rules being made up as people went along--and Marshall would be there at the foundation.

With Jefferson not wanting the administration represented in the court, Marshall had to resort occasionally to extraordinary means just to determine facts. Such was the case when James Marshall was called to testify about the non-delivery of the commissions.

Finally, on February 24, Marshall read aloud the ruling. This, in itself, was a break with prior practice, in which the justices handed down their own separate decisions.

Marshall, in writing and delivering the opinion himself, was having the Court speak as one voice. Moreover, because the ruling was a unanimous 6-0, he had succeeded in “massing the court,” or presenting a united front—an effective device for gaining legitimacy in controversial cases.

Marshall answered “yes” to the first two questions before the justices: Did Marbury and the other plaintiffs have a right to receive their commissions, and could they sue for their commissions in court?

Two statements in particular, both of which continue to reverberate with clarity and authority to the present day, seemed guaranteed to provoke Jefferson into another act of retaliation against the judiciary: "A Law repugnant to the Constitution is void" and "It is emphatically the duty of the Judicial Department to say what the law is."

Then Marshall pulled his masterstroke. Even though Marbury was entitled to the commission, he could not rely on the Judiciary Act of 1789, since Constitution did not permit the Court to have original jurisdiction in this matter. Therefore, the Court would not order the White House to give Marbury his office.

What to make of this maneuver? Jefferson had been left, it seems, with a victory: this and other judicial appointments that could obstruct his power had been vacated.

It was, in fact, nothing of the sort, but rather, as noted in Michael Glennon's excellent overview of the case in the Summer 2003 issue of The Wilson Quarterly, "a masterwork of calculated restraint, feint, and cunning, an opinion that laid claim for the courts to the greatest of government powers—the final say as to what the law is—even as it left Marshall's opponents no effective response."

In later years, the President realized that Marshall had a loaded pistol at his disposal in the doctrine of judicial review. Jefferson would decry Marbury v. Madison and subsequent decisions of the Marshall Court.

At the same time, Marshall solidified a judicial institution that had appeared increasingly irrelevant. Turnover on the Supreme Court had been rapid, in no small part due to the belief that it was the weakest of the three branches of government, with its power continuing to ebb. When he had taken over, R. Kent Newmyer told Brian Lamb in a C-Span "Book Notes" interview in 2002, "the institution was pretty much on the ropes.

Marshall changed all that, through his intellect, his charm, and his 35 years as Chief (still a record in that post), as I discussed in a later precedent-setting ruling of his, Gibbons v. Ogden. Perhaps most of all, he retained his influence through his shrewd political insight that he should not invite a reaction by overstepping his authority. 

So, though he claimed the right of judicial review, that authority would not be exercised again until 1857, two decades after his death, in the enormously controversial Dred Scott decision--a ruling that also confirmed that Marshall was the first Court practitioner of what Felix Frankfurter would call "judicial restraint."

(There are many fine discussions of Marbury vs. Madison, but one I would recommend is Nicholas Mosvick's blog post this time last year on the Website for the National Constitution Center.)