Marbury v. Madison: The First Landmark Supreme Court Decision
Marbury v. Madison: Judicial Review
Reflecting on the Marbury v. Madison case 20 years later
A Fictional Dialogue Between Thomas Jefferson and John Adams in 1823
By Michael M. Nakade
Jefferson: When the Supreme Court case of Marbury v. Madison came up in 1803, I was very angry at you, Mr. Adams. The case happened because of your midnight appointment of federal judges as you were leaving the Oval Office in March 1801.
Adams: I understand. At the time, I was desperately trying to curb your Democratic Republican Party’s influence. You and I were bitter political rivals. I tried to make sure that the judicial branch of the federal government would be filled with my appointees, the Federalists.
Jefferson: You were doing the paperwork at the absolute last minute. The commissions were signed and sealed, but the outgoing Secretary of State, John Marshall, did not finish delivering them to every judge who was appointed by you. I came on board and specifically instructed my new Secretary of State, James Madison, not to deliver those commissions. Then, of course, there was a lawsuit brought on by men who did not get the job. One of the men was William Marbury. The suit was brought against Madison so that he might get the commission from Madison.
Adams: Yes. I was partly to blame for the last minute appointments. There were too many new judiciary positions to fill in so little time. The strange twist in this suit was that my Secretary of State, Marshall, became Chief Justice of the Supreme Court. If he had delivered those commissions before his term was up, he didn’t have to preside over this case.
Jefferson: That’s right. Marshall was a smart man. He thought about this case for a long time and made the most of it. He was my bitter enemy during that time, even though we were second cousins. Like you, he was a staunch Federalist, and his agenda was to curtail the power of my Democratic-Republican administration. He really took advantage of this particular Supreme Court case.
Adams: I agree. It was very shrewd of him to remind the nation what the role of the Supreme Court was when he gave his opinion on the case. Frankly, this would have been an insignificant case. Marbury wanted the commission delivered to him by the new Secretary of State. He and his lawyer thought that the Supreme Court would see Madison’s refusal as unjust. But that’s not quite how it turned out.
Jefferson: Marshall was clever, indeed. The phrase ‘legal technicality’ comes to my mind when I think of his opinion on the case. He agreed with Marbury’s lawyer that the midnight appoint was valid and that Marbury should get his job as justice of peace in Washington D.C. But, he really wasn’t interested in giving the job to Marubury. He was looking for a bigger fish by taking advantage of the opportunity that was presented to him.
Adams: And, he got the big fish. He read every fine print of the Section III of the United States Constitution and the Judiciary Act of 1789 to rule this case. That was brilliant because he noticed the discrepancy between the two.
Jefferson: I was not happy what Marshall pointed out in his opinion. He declared that his court had the power to check my administration and the congress’s respective power. You and I have had the legal training. Perhaps, you want to refresh my memory on the technical aspect of Marshall’s finding.
Adams: Sure. Like you said, it was highly technical. Lay people probably find it difficult to understand, but it is important to know. First of all, the Section III of the Constitution specifies what the Supreme Court’s original jurisdiction is. It says:
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.
But the Judiciary Act of 1789 (passed by the Congress and signed by the Executive) gave the Supreme Court original jurisdiction over writs of mandamus. That was a conflict that no one had noticed back in 1789.
Jefferson: Well, let me clarify what writs of mandamus are, since that is a Latin phrase, and most folks have no clue. Writs of mandamus are legal orders that force a government official to perform a duty required by law. What the Judiciary Act of 1789 did was to expand the Supreme Court’s original jurisdiction. It meant that cases involving government officials could go straight to the Supreme Court. Marbury’s lawyer took advantage of this law and brought a suit to the Supreme Court directly. If the lawyer brought the suit to the district court, then, the case might not have given Marshall an opportunity to write the opinion that he did.
Adams: Yes. It gets very technical. In his opinion, he agreed that Marbury should get the commission from Madison. In fact, I was happy to read the first part of his opinion. After all, I appointed Marbury to the position, and the Senate confirmed the appointment. Marbury deserved to get the job. But, that was not the story of this case.
Jefferson: Correct. There was the second part of the opinion.
Adams: Marshall appealed to technicality. He said the Judiciary Act of 1789 made it okay for Marbury to bring the suit to the Supreme Court as writs of mandamus. But, the Constitution specified that the Supreme Court’s original jurisdiction was limited only to cases affecting ambassadors and other public Ministers and Consuls, and those in which a State shall be a Party. Marbury was a federal judge. He didn’t have the right to bring the case directly to the Supreme Court.
Jefferson: That’s right. So, in essence, Marshall said that the case didn’t belong to the Supreme Court in the first place. As such, he couldn’t force Madison to deliver the commission. I find this extremely ironic because it was Marshall who failed to deliver the commission in the first place as an outgoing Secretary of State.
Adams: Regardless, it was a brilliant move by Marshall. Because he noticed that the Congressional law contravened the Federal Constitution, he had the golden opportunity to raise the question, “Who decides if the laws are constitutional or not?”
Jefferson: Today, we all know the answer. Marshall wrote: “lt is emphatically the province and duty of the judicial department to say what the law is.” It was the Supreme Court’s declaration of Independence within the federal government. Now, everyone in America knows what the role of the Supreme Court is. It is called the judicial review. I was not happy that he found an opportunity to remind everyone in my administration that his court could strike down any laws that were deemed unconstitutional. It was his way of trying to restrict the power of my party’s agenda.
Adams: But, at least, Madison didn’t have to deliver the commission to Marbury. Poor Marbury. His complaint against Madison was heard with sympathy, but declared that he couldn’t get the job because the Supreme Court did not have the jurisdiction over this case. I bet you and Madison were happy about that.
Jefferson: I was happy that your midnight appointments were not completely carried out. But, I was alarmed by Marshall’s declaration that his branch could and would limit the power of my party through legal means.
Adams: Well, that’s what checks and balance were supposed to be. (Smiling.)
Jefferson: (Also smiling) That’s right. When we were the minority party, we desperately wanted to limit the majority party’s power and wanted to make sure that checks and balance would be in place. But, when we gained power, we wanted to remove anyone getting in the way of our policy agenda. I guess that’s being human.
Adams: That’s exactly right. We do things because we believe we are doing what’s best for our beloved nation. We just don’t believe that the oppositions’ view points have any merit. (Smiling).
Jefferson: Democracy works in our country because our system has a built in safeguard against one branch of the government becoming too powerful.
(The author found all relevant information in this work from The Teaching Company’s lecture series on The History of the Supreme Court, Lesson 4, “Marshall Takes Control” by Prof. Peter Irons.)