The American Presidency

Marbury v. Madison: The Explicit Rise of Judicial Review

The Political Context of Marbury v. Madison

James Madison wrote that all new laws are "obscure and equivocal" until their meaning is determined by "a series of particular discussions and adjudications." ²⁷ Marbury v. Madison in 1803 became one such discussion, promising to clarify the Court's role under the Constitution. While there were four Chief Justices and 12 cases heard between 1790 and Marbury in 1803, no prior cases played such a crucial role in dictating the role of the Court.

Indeed, the role and proper jurisdiction of the Court were under close watch by Thomas Jefferson and his administration, as well as the American people. Having taken the office and role of Chief Justice only 13 days before Thomas Jefferson, John Marshall was thought to represent the interest of Federalist and not Jefferson's Republican party. Bruce Ackerman summarizes their relationship on a more personal level: "Jefferson detested him, despite—because of?—the fact that they were cousins." ²⁸ The Court had immediate reason to worry that its Justices would be impeached since Justice Samuel Chase became the first- and only- Justice to be impeached in 1803.

In this context, and amid even greater fears that there may be a NEW Constitution, it was important that Chief Justice Marshall find some way to clarify the court's role without stepping- at least too hard-on Jefferson's toes.

The Case

In Marbury v. Madison, the Court considered the question of whether or not the Supreme Court should force, through a "writ of mandamus," a current Secretary of State, Madison, to honor and deliver a commission from a former Secretary of State (coincidentally, this former Secretary was Marshall!). Ruling in favor of Marbury would have dramatically upset both Thomas Jefferson and James Madison and ignited severe criticism toward the court from Republicans. According to Jeffery Rosen, these Republicans wanted judges "entirely subservient to popular will." ²⁹ Any decision that conflicted with the "will" of the elected branches, then, could be seen as a violation of their primary duties. It may even have led to more impeachments if Jefferson and the Legislative determined that Supreme Court judges were acting in a manner out of line with the Constitution! After all, a single "anti-Constitutional" remark from Samuel Chase, had appeared to spark his impeachment hearings. ³⁰

Ultimately, however, the court argued that issuing a writ of mandamus exceeded the scope of their powers under the Constitution and was "not warranted by the Constitution." ³¹ The Syllabus and Opinion of the Court elaborated at length upon the limits and process of the Presidents power of Appointment, where this power begins and ends, and how commissions are to be delivered. Beyond these procedural issues, however, the syllabus notes, in somewhat an abrupt and incongruous, manner, that "it is emphatically the duty of the Judicial Department to say what the law is." ³²

This interpretation of the Judicial Department's role served, in a practical sense, to establish judicial authority and supremacy of interpreting the Constitution! Legal scholars and future justices have made innumerable references to this quote and cited it as the birth of "judicial review." Indeed, this quote has been used to delineate and reaffirm the court's role in some of the most famous cases in American History, including Dred Scott v. Sandford, Cooper V. Aaron (desegregation of schools in Little Rock), and United States v. Nixon. Ultimately, this case "provides the foundation for American constitutional law by establishing the authority for judicial review of EXECUTIVE and LEGISLATIVE acts." ³³

The story of judicial interpretation would seem to end with Marbury v. Madison, and for many scholars, it has. The Supreme Court has final and ultimate authority in interpreting the Constitution. Period. How much clearer could Justice Marshall have been?