Chapter 1: The Rise of Judicial Review

Marbury v. Madison (1803)

Like many Supreme Court cases, the great case of Marbury v. Madison began simply. William Marbury and three other people did not receive appointments as justices of the peace for the District of Columbia. Their claim before the Court was the result of a general effort by the outgoing administration of President John Adams to place its Federalist supporters in newly created judicial positions. The Federalist-controlled Congress, for example, passed the Judiciary Act of 1801 in the waning days of the Adams’s administration, after Thomas Jefferson had been elected the new President. The law was a combination of well-intended judicial reform and political expediency on the part of the outgoing Federalist Party. It reduced the size of the Supreme Court from six to five justices, an action designed to deprive Jefferson’s incoming administration of the opportunity to appoint a high court judge quickly.

The act also created sixteen new federal circuit court judgeships, and two weeks later a separate measure established forty-two justices of the peace in Washington, D.C., where the federal Congress had full control. President Adams appointed the new judges and signed the commissions just before he left office, and so the appointees became known as “midnight judges.” For reasons that remain historically murky, however, John Marshall, who was both secretary of state and chief justice of the United States for a brief period, failed to have the commissions delivered to the justices of the peace.

Marbury was one of those “midnight judges” who did not receive a commission. When the new secretary of state, James Madison, took office he refused to deliver the commissions to Marbury and the others. Madison knew that President Jefferson and his stalwarts in Congress intended to repeal the Judiciary Act of 1801, which they did a year later, and that the judges and justices of the peace would soon be out of a job. Marbury and the others, however, decided to protest Madison’s action. They brought their case under the Supreme Court’s original rather than appellate jurisdiction. The Court can have cases presented to it in two ways. First, and most significantly, the justices hear cases on appeal, after another court, state or federal, has heard the dispute. Alternatively, as with Marbury, the justices can hear a small number of cases under the Court’s original jurisdiction, which means it holds a trial or similar proceedings in order to determine the facts in the dispute and then settles the case by applying the law. This original jurisdiction, however, is narrowly tailored; the justices can hear only those cases involving ambassadors, public ministers, and consuls and suits involving states as parties. The Congress had also, in Section 13 of the Judiciary Act of 1789 that organized the American federal courts and legal system, provided that the Supreme Court could issue writs of mandamus. A writ is simply an order by a court. A writ of mandamus (which in Latin means “we command”) is one that directs an individual to do something; in this instance, Marbury asked the court to tell James Madison to deliver the signed commissions to Marbury and his colleagues.

Chief Justice Marshall was in a compromised position because he had been the secretary of state who had failed to deliver the commissions in the first place. Despite this apparent conflict of interest, and in stark contrast to the judicial ethics of today, Marshall not only participated in the case but played an active, defining role, and ultimately wrote the opinion for the Court.

In December 1801 Marshall asked the Jefferson administration to respond to Marbury, but Madison ignored the request. The Jeffersonian Republican Congress also sent a direct, although controversial, message to the justices. It ordered that the Court would not meet for the 1801 term. Article III, section 2 provided that “the supreme Court shall have appellate Jurisdiction, both as to Law and Face, with such Exceptions, and under such Regulations as the Congress shall make.” Despite the clear wording of the Constitution, Federalists complained that such an action was unconstitutional because it denied citizens access to the Court, but the Republicans, now in control and determined to press their advantage, were unmoved. As a result, Marbury’s case did not reach the Court until 1803, two years after it had been brought. In the meantime, the Jeffersonian Congress repealed the Judiciary Act of 1801 and dismissed the judges appointed under its provisions. Jefferson and his followers believed that the Federalists, having lost at the polls, were determined to use the courts to frustrate the Republicans’ legislative program. Moreover, the Republicans in Congress were threatening to impeach Federalist judges who could not be removed simply by repealing the 1801 act. It was in this highly charged political atmosphere that Chief Justice Marshall had to settle Marbury’s case.

The case raised two distinct issues. The first was whether the justices could exercise the power of judicial review. This term means the power of a court, in this instance the Supreme Court, to review and potentially strike down an act of Congress as unconstitutional and invalid. Marbury’s case presented the justices with an opportunity to expand their authority but also raised the possibility that Congress would react by stripping them of some of their powers if they did so.

The second issue was how extensively the justices should become embroiled in political battles. In many ways the question of whether a commission had been delivered was a political, not a legal one. If the justices tried to settle that question they would leave themselves open to charges that they were interfering in matters over which they had no authority.

The Jefferson administration assumed that the Court did not have the authority to address the question of the commission. It refused to give Marbury his commission and it also refused to appear in Court the day the case was argued. Marbury’s counsel did appear, however, and managed to demonstrate to the justices through testimony that the commissions had been signed but had disappeared, to where no one knew.

Marshall’s opinion for the Court held that Marbury was entitled to his commission and that Madison had wrongfully withheld it from him. But Marshall understood that directly attacking the Jefferson administration by giving Marbury what he wanted would potentially threaten the autonomy of the Court. Marshall sidestepped the critical questions while establishing the right of the justices to settle such matters conclusively—to exercise judicial review—and to remain free of political entanglements. As Marshall’s opinion made clear, the power of the Court derived from its role as a legal, not political, institution. In fact, Marshall noted in his opinion that asking the justices to decide such questions was “peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation.” What is genuinely impressive about Marshall’s opinion was that he managed to weave through the political maze in such a way that he not only affirmed but enhanced the power of the Court he led.

Marshall held that a writ of mandamus was the appropriate remedy. The important question, Marshall concluded, was whether such a mandamus was available under the grant of original jurisdiction to the Supreme Court in Article 3 of the Constitution. Cleverly, Marshall decided the question by comparing the text of Article 3 with Section 13 of the Judiciary Act of 1789, the section giving the Court the power to issue a writ of mandamus in the first place. Marshall found that Congress could not provide for the Court to use a writ of mandamus because no such power was granted to it in the Constitution.

Marshall used this finding to reach an even more important conclusion. When a statute conflicted with the federal Constitution, Marshall explained, it was “the essence of judicial duty” to follow the Constitution. Marshall went on to explain that “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Marshall gave a ringing declaration to Marbury’s legal rights. “The government of the United States,” he continued, “has been emphatically termed a government of laws, not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of vested legal right.”

Through these words Marshall established two enduring principles of American law: that courts determine what the law means and that they can overturn those laws that fail to conform with the Constitution. In this instance, Marshall affirmed that Marbury was due his commission, but he also concluded that because the justices could not issue a writ of mandamus since Section 13 of the 1789 Judiciary Act was unconstitutional, there was no means by which Marbury could receive his commission. Marshall’s decision made it clear that Marbury had lost an important property right when the commission was not delivered to him, but that the Court could do nothing to help him. “The authority,” Marshall explained, “given to the Supreme Court by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers appears not to be warranted by the constitution.”

Marshall managed in one opinion to underscore his respect for those property rights and to establish that the judiciary could be, under the right circumstances, a powerful instrument to protect individual rights against legislative action. But because the Jefferson administration was not asked to do anything and Marbury was not going to receive his commission, there was no immediate reason or way for it to strike back and limit the Court’s power. Marshall affirmed an enduring principle: what the Court said the Constitution meant was final. Congress can act only within the confines of the Constitution.

Marshall’s opinion was an iron fist wrapped in a velvet glove. He asserted unequivocally the Court’s power to rule on the constitutionality of congressional laws, but he kept the justices free from direct political conflict by concluding that the Court was powerless to help Marbury secure his commission. Marshall had managed in a highly charged political environment to build the authority of the Court without producing a political backlash that might have diminished it.

The Jeffersonian Republicans were openly frustrated by Marshall’s constitutional dexterity, but in the end they could do little more than complain. Judge Spencer Roane, who like Jefferson and Marshall was from Virginia, attacked the Marbury decision in newspaper articles. Roane was a staunch advocate of limited federal judicial power. Two decades later, Judge John Bannister Gibson of the Pennsylvania Supreme Court asserted in the case of Eakin v. Raub (1825) that the decision in Marbury was nothing more than judicial usurpation. Roane and Gibson both insisted that an unelected federal judiciary serving terms during good behavior was too remote from the people to decide the validity of a legislative act. Once the people had spoken through their elected representatives, the courts were powerless to reverse the actions of these representatives.

During the summer of 1803 the Jeffersonian Republicans also launched a direct political attack on sitting federal judges appointed by the Federalists. The first victim was a district court judge, John Pickering of New Hampshire. Pickering was both insane and alcoholic, and in 1804 he became the first federal judge to be impeached, convicted, and removed from office. A year later, the Republicans turned their eye on an associate justice of the Supreme Court, Samuel Chase, who had helped Marshall prepare important parts of the Marbury opinion.

Chase was a nakedly partisan Federalist who enjoyed taunting his Republican detractors. He earned their special anger as a result of a charge, or instruction, he gave to a grand jury in Baltimore in which he denounced the repeal of the Judiciary Act of 1801, characterized President Jefferson as immoral, and suggested that the Republicans in Congress were seeking to instigate mob rule. Jefferson personally disliked Marshall. He noted later in life that Marshall’s judicial method was “very irregular and very censurable.” And Marshall returned the disdain. Even after Jefferson’s death, Marshall scornfully wrote that “I have never thought him a particularly wise, sound, and practical statesman.” Jefferson also disliked Chase intensely. He personally asked his party’s leaders in the House of Representatives to impeach Chase, whom he detested even more than Marshall.

In 1805, the House of Representatives did just that, but the Senate failed to muster the two-thirds majority needed to convict him. When Chase’s trial began in the United States Senate, the Republicans were in control of the government and certain that they would convict the partisan justice. Many of the senators treated the trial as something of a kangaroo court, but the presiding officer, Vice President Aaron Burr, conducted the proceedings with great fairness. Chase’s lawyer, Luther Martin, had the opportunity to present a complete defense for his client and, in the end, the Senate acquitted Chase. The verdict discouraged further attempts to impeach justices simply because of their political views. Chase’s impeachment, however, sent another message: members of the judiciary were expected to avoid partisan politics. Throughout American history, justices have found themselves in trouble when they have been perceived to be involved in ordinary politics.

Ironically, Vice President Burr himself was wanted for killing Alexander Hamilton in a duel in New Jersey. He was, however, immune from prosecution in Washington, D.C. Two years later, Burr was tried for treason in a case over which Marshall presided and Luther Martin served as Burr’s attorney.

Judicial review had certainly been used by other courts before Marbury. Both state and lower federal court judges had refused to uphold particular laws because they considered them to be contrary to a state constitution or the federal constitution. Marshall’s opinion was important not because it was first but because it was the first statement of the doctrine of judicial review by the nation’s highest court. In making his statement Marshall drew his authority from the colonial Massachusetts lawyer James Otis, who had brilliantly argued in the Writs of Assistance Case (1761) that judges were prohibited from enforcing laws that were patently unconstitutional. That idea had deep roots in English legal history, stretching at least back to Dr. Bonham’s Case in 1610. In that instance, Sir Edward Coke, one of the greatest lawyers of English history, articulated the principle that parliamentary statutes contrary to custom and right reason must be held invalid.

Alexander Hamilton drove this same idea home when he argued for the adoption of the Constitution in The Federalist No. 78 (1788). According to Hamilton, limited government required that courts of justice be empowered to “declare all acts contrary to the manifest tenor of the Constitution void.” Marshall’s opinion in Marbury reflected Hamilton’s reasoning and stressed the duty of judges to apply the law to cases before them. Thus, judicial review was a necessary constitutional check on legislative discretion that might rob an individual or his or her life, property, or liberty.

Marbury stated the principle of what is called “coordinate branch” judicial review, in which the Supreme Court limits the power of one of the two other— coordinate—branches of the federal government. The act of judicial review is also important in striking down state laws and judicial decisions that are contrary to the Constitution. The justices have found that when such state measures violate the supremacy clause of Article 6, which says that the Constitution is “the supreme Law of the Land,” they cannot pass federal constitutional muster. It was the exercise of this power, the Supreme Court’s striking down of state acts, that stirred the greatest outcry in the nineteenth century. The justices did not attempt to void another act of Congress until 1857, when in the Dred Scott case it held invalid the 1820 Missouri Compromise, which involved the regulation of slavery in the western territories. In actuality, the Court’s action was little more than a gesture, as Congress had already repealed the compromise when it passed the Kansas-Nebraska Act in 1854.

The significance of Marbury has grown over time. When the decision was issued, even its harshest critics, such as Roane, did not appreciate the central role that it would come to play in the American constitutional system and the nation’s history generally. Marshall’s decision, by establishing the practice of judicial review, granted to future generations of justices one of their central powers. It also underscored that because the justices exercise this power in an often heated political environment they must do so with great care. Today, no other decision by the Court is more frequently cited for its role in American government than Marbury.