A crisis for the high court

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Before the Marbury case, the U.S. Supreme Court won little glory or even attention. I had heard very few cases, let alone important ones. Its first Chief Justice, John Jay, resigned in 1795 to become governor of New York. The man nominated to be his successor, Jon Rutledge, was rejected by the Senate. Oliver Ellsworth was confirmed but resigned after serving only four years.

Then came John Marshall. Behind his careless dress and genial manner were a brilliant mind and a persuasive personality. Appointed Chief Justice while serving as secretary of state in the Adams administration, the eloquent Federalist from Virginia dominated the Supreme Court for 34 years. The vision, the logic of his decisions established the dignity and influence of the Court. He made it truly co-equal with the presidency and Congress.
Marbury v. Madison

John Adams was in the final days of his presidency when Congress, which was controlled by the Federalists, passed some last-minute laws. Among these laws was one that gave President Adams the power to appoint justices of the peace for the District of Columbia. With less than a week to go, he appointed 42 justices and the Senate confirmed them. Because the proper paperwork was lengthy, there was not enough time to deliver all the commissions to the new appointees.

Thomas Jefferson, who succeeded Adams to the presidency, was elected by the Democratic-Republican party. The Republicans also took control of the majority of seats in Congress. One of their first acts was to abolish most of the court positions created by the Federalists. The Republicans refused to deliver the remainder of the commissions.
One of the men who did not receive his commission was William Marbury. Marbury and three others took the issue before the U.S. Supreme Court. They asked that the court issue a writ of mandamus – an order that a public official carry out a specific duty. He wanted the writ to force Secretary of State James Madison to release their commissions. Marbury argued that the Constitution gave the court original jurisdiction to hear the case. He further claimed that the Judiciary Act passed by Congress in 1789 gave the court the power to issue the writ of mandamus.
The case stirred much political controversy. The Supreme Court was dominated by Federalists. Chief Justice Marshall knew that the Republicans would try to impeach justices from the court if he ordered Madison to deliver the commissions. In addition, the Republicans might refuse to obey an order of the court. Either of these actions could seriously damage the court.
Chief Justice Marshall knew that he had to consider not only the Judiciary Act of 1789 but also Article III, Section 2, of the Constitution itself. Practically speaking, however, the problem was whether the court should risk taking a stand that would be challenged by the Republicans.
“In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” ~ Article III, Section 2, U.S. Constitution
“The Supreme Court…shall have power to issue…writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.” ~ Judiciary Act of 1789

What would happen if the court issued a ruling that the Jefferson administration refused to obey? Could the court survive such damage to its prestige? Regardless of the merits of Marbury’s request, would it be better to protect the court by avoiding a direct clash? Clearly, the Chief Justice faced a hard decision. He had to decide which was more important: upholding a man’s rights or the survival of the court.


  1. How would you interpret, in your own words, the Judiciary Act of 1789?

  1. How would you interpret Article III, Section 2, of the Constitution?

  1. Do you think that the phrase “other public ministers” refers only to foreign diplomatic officials or to a broad category of public officials, domestic as well as foreign, including the justices of the peace in Marbury v. Madison?

  1. What conflict, if any, do you see between Article III, Section 2, of the Constitution and the Judiciary Act of 1789? If you believe that conflict exists, how would you resolve it?

Supreme Court Decision and Reasoning

John Marshall very carefully analyzed the case in terms of three questions. First, did Marbury have a legal right to his commission as a justice of the peace? YES. Second, if he had a right, and that right had been violated, was there a legal remedy? YES. Third, could the Supreme Court decree the proper remedy, a writ of mandamus? NO.

To reach this conclusion, the Chief Justice first declared the court’s right to interpret laws: “It is emphatically the province…of the judicial department to say what the law is.” Then he interpreted Article III, Section 2, of the Constitution in a narrow, literal way. He said that Section 2 granted the Supreme Court original jurisdiction only in those instances expressly listed. The writ of mandamus was not among them. Therefore, the attempt by the Judiciary Act of 1789 to extend the court’s original jurisdiction to include such a writ stood in direct conflict with the Constitution itself. The statute was therefore of no effect.
“Certainly,” stated Marshall, “all those who have framed written constitutional contemplate them as forming the fundamental and (supreme) law of the nation, and consequently the theory of every such government must be that an act of the legislative repugnant to the constitution is void.”
He reasoned that the Constitution was superior and paramount law, not to be changed by ordinary means. It was not to be considered “on a level with ordinary legislative acts and, like other acts, (changeable) when the legislature shall please…”

  1. Again read Article III, Section 2, of the Constitution. Study the reasoning of the court as presented above. What new power did the court create? Explain your answer.

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