We normally think of judicial review of legislation as a zero-sum game, but it has unseen benefits.
My daughter enjoys horrifying me with tales of daily life in a modern high school, and who am I to deny her such small pleasures. But lately, she’s decided to provoke me with her history lessons on the early republic, and that’s just taking things too far. I don’t envy anyone who sets out to write a high-school history textbook. Reducing all of American history to accessible and interesting highlights for consumption by the average teenager and jumping through all the bureaucratic and political hoops to get the content into the classroom is no easy task. But I reserve the right to pick nits nonetheless.
Her text gives what I believe is a still common view of Chief Justice John Marshall’s 1803 decision in Marbury v. Madison. William Marbury was nominated and confirmed to be a justice of the peace in the nation’s capital in the last days of the Federalist John Adams’s administration. Then-Secretary of State John Marshall had the duty of delivering judicial commissions to the new appointees, but Marshall failed to get all of them delivered in those last frantic days and hours as Adams packed the courts with friendly Federalists. The Republican Thomas Jefferson had won the presidency in a bitterly contested 1800 election, and his secretary of state, James Madison, had inherited the leftover paperwork from his predecessor, including Marbury’s commission. Jefferson, believing that commissions were not valid until sign, sealed and delivered, instructed Madison to hold off on delivering any remaining commissions until the administration had decided how they wanted to proceed. Marbury took Madison to court seeking the delivery of the commission, and in a closely watched decision now-Chief Justice John Marshall chastised the administration for failing to fulfill its legal obligation of delivering a valid commission but concluded that the Court did not have proper jurisdiction to resolve the case (despite a federal statute purporting to grant such jurisdiction). Marbury did not pursue the matter further, and his term of office expired without his ever serving.
As my daughter’s teacher glossed the textbook, with the Marbury decision, President Thomas Jefferson won the battle but lost the war. He won the battle of “denying Marbury his appointment.” But the real victory went to Marshall, for he “claimed a sweeping power for the Supreme Court that the Democratic Republicans did not want the Court to have.” In Marbury, John Marshall “first asserted the power of judicial review” and “established the judiciary branch as an equal partner in government,” and because of that decision we have a practice of judicial review today.
This is a familiar account of what Marshall accomplished in Marbury, but not a particularly accurate one. Let me just briefly note a couple of difficulties. First, Jefferson was not hostile to judicial review, so Marshall’s argument was hardly a setback. Jefferson was an early adopter of the power of judicial review. When Madison hesitated over the possible value of including a Bill of Rights in the U.S. Constitution, Jefferson suggested to him in 1789 that a prime virtue of constitutional rights provisions was that they put “the legal check . . . into the hands of the judiciary.” The great frustration of the Jeffersonians in the 1790s was precisely that the federal courts refused to strike down the Federalist policies that Madison and Jefferson thought were patently unconstitutional. Jefferson and his allies were hardly happy with the Federalists on the bench, but with a legislative agenda that primarily involved shrinking the size of the federal government they did not have much to fear from judicial review. And indeed, the Marshall Court never struck down a Jeffersonian policy.
Second, John Marshall hardly “established judicial review” or bequeathed the power to us. As was well recognized in the early republic, the Marbury case was just one example among many of assertions of the power of judicial review in the first several years after the Revolution. As I’ve detailed elsewhere, when lawyers wanted an authority to explain the power of judicial review, they were more likely to point to Alexander Hamilton’s essay in the Federalist Papers, St. George Tucker’s notes on Blackstone, or Justice Samuel Chase’s 1798 opinion in Calder v. Bull than to John Marshall’s later opinion in Marbury v. Madison. By the time John Marshall joined the chorus in 1803, the power of judicial review had already been claimed and exercised in the lower federal courts, the state courts, and the U.S. Supreme Court itself. It was only much later that Marbury was promoted as having some special significance for creating the power of judicial review.
So, what did Marshall accomplish in Marbury? For one thing, he wrote a really nice opinion. Marshall may not have established the power of judicial review, but he elegantly summarized the argument in favor of such a power. Other judges and writers soon started quoting from Marbury as a well-stated exposition of the conventional wisdom. Marbury helped popularize the idea of judicial review, not invent it.
But perhaps more importantly for his contemporaries, Marshall indicated that the courts were a check on the executive. Modern casebooks focus their attention on the last part of John Marshall’s opinion, where he explained how courts had a duty to enforce the Constitution and thus limit legislative power. Through much of the nineteenth century, commentators paid more attention to the earlier parts of his opinion, where Marshall intoned that the United States was a “government of laws, and not of men” and therefore the courts could oversee how the executive branch carried out its duties. It was also this part of the opinion that annoyed the Jeffersonians, who thought that the courts should not meddle in the operations of the executive branch and that it was the responsibility of the president to monitor how executive officials fulfilled their responsibilities. To the extent that Marbury highlighted the possible judicial check on congressional power, the Jeffersonians had no problem with it. To the extent that Marshall suggested that he, not the president, should instruct the secretary of state on how to do his job, the Jeffersonians were less content with the Marbury opinion.
Why should we still care about the details of a two-hundred year old judicial decision? The story of Marbury is often used to convey a lesson about the judicial check on the legislative branch, and more broadly on political majorities. Marbury is a poor vehicle for conveying that lesson. Marshall was far more concerned with expanding congressional power than with reining it in. What the story of Marbury should help us understand is how the power of the courts rests on the broader foundation of political support for its mission. American courts were able to exercise the power of judicial review and enforce constitutional limitations precisely because politicians and citizens wanted them to do so and rallied to their aid when that judicial duty was challenged. The Jeffersonians did not make “war” on the power of judicial review, and if they had done so Marshall’s isolated and toothless opinion would hardly have made much of a difference. Marshall’s explanation of the power of judicial review had resonance because it reflected commonly held views.
Jefferson won both the battle and the war.