Supreme Court Decision of Historical Import #1
I am going to try out publishing pages weekly, or so, that review Supreme Court decisions that have had a lasting impact. I am going to try and stay away from the law school system of FIRAC (facts, issue, ruling, analysis, conclusion); at least in a very structured way. But I will discuss some of the finer points and why the case matters. Also, I won’t just focus on decisions that are still in effect - there are some cases out there that have been overturned, but that certain aspects of the conservative movement argue should be brought back.
Since this is the first in this series, I figure we might as well start at the beginning, quite possibly the most important case in the history of these United States: Marbury v. Madison 5 US 137.
I call this the most important case in American history because it effectively established the principle of judicial review within the constitutional system. Though that is not the only principle that was established.
The facts are fairly well known, after the election of 1800, the Federalists (led by President John Adams) were routed. Adams, having lost re-election to Thomas Jefferson decided to make several appointments during his lame duck tenure (with the help of the Federalist majority in Congress). In February 1801 (the new Congress and President weren’t sworn in until March at the time), Congress (also with a lame duck majority) passed a law creating positions of justices of the peace for DC. Adams appointed, among others, William Marbury. Unfortunately, Marbury did not receive his commission before the new administration took office:
It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.
This was, quite honestly, one of the first true tests of the constitutional system and the notion of the peaceful transfer of power. And it is worth noting that Chief Justice John Marshall, who wrote this opinion, was another one of Adams’ midnight appointments. At the time of the election of 1800, Marshall was Adams’ Secretary of State. Having lost the election, the Federalists in Congress passed the Judiciary Act of 1801 (also called the Midnight Judges Act), which among other things reduced the size of the Supreme Court from six to five (thus denying Jefferson an appointment). After former Chief Justice John Jay declined to be appointed again, Adams nominated Marshall in the last few weeks of his administration, and he was quickly confirmed by the Senate.
The Court spent a lot of time considering whether the commission was valid, ultimately concluding:
Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but violative of a vested legal right.
But then, turned to the question of whether Mr. Marbury had a remedy under the law; and more importantly, could that right be enforced against the executive branch of the government. After finding that he had a right under the law to the commission, the Court turned to whether that right could be enforced. In doing so, the Court addressed the concept of executive privilege:
With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the President of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that, in such a case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives of the Executive.
Of course, the Court also found limits to executive privilege, stating:
If one of the heads of departments commits any illegal act under colour of his office by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct if the case be such a case as would, were any other individual the party complained of, authorize the process?
In its analysis, the Court found that newly appointed Secretary of State James Madison had acted unlawfully under color of law/authority. But it still had to address the issue of whether the Supreme Court could issue a writ of mandamus ordering Madison to accept the commission. And it is here where the Court ultimately rules against Marbury.
The reasoning, ultimately, was that a writ of mandamus is vested in the appellate jurisdiction of a court, but this case arose out of the Supreme Court’s original jurisdiction. Therefore, the Supreme Court not grant the remedy that Marbury sought.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
In one fell swoop, Marshall managed to raise the courts to be a truly co-equal branch of government, while at the same time, giving Jefferson and Madison something of a political win, in that they’d be able to appoint a new justice of the peace to fill the position that Marbury should have taken. Despite this, Jefferson was not a fan of the decision because he saw it as a step down the road to oligarchy:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps
We have been lucky in that the legal system in the US has developed in a way that the courts have not become an oligarchy as Jefferson feared. It is also worth considering that Jefferson’s preferred remedy would have likely led us into a revolving door of constitutional crises:
When the legislative or executive functionaries act unconstitutionally,
they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but to the people themselves; and if we think them not enlightened enough to exercise their control without a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.
There’s a lot of irony in that statement, given Jefferson’s vast slave holdings that the “people” should be trusted to turn out bad actors. It’s also a dangerous approach because it does leave the very notion of constitutional rights to the whims of passing electoral majorities - and as our system has shown over the years, even when the majority turns against a prior position, it can take years to reverse a policy.
Instead, Marshall’s ruling effectively gave us a way to resolve constitutional questions without having to resort to amending the constitution every time a dispute arose over whether a party was acting constitutionally. The decision also, I believe, set the judicial system on its course to independence - something which has typically made our system of government more stable than most over the course of the last 217 years.