Today in Supreme Court History: February 11, 1803

2/11/1803: Marbury v. Madison is argued.

Comments

[Area Man]

It was a monumental case decided in less than 2 weeks, in an era before printing, word processing, computer-based legal research, etc. That’s crazy.

[Area Man]

Or, I should clarify, crazy by today’s standards. It may have been normal for its time. I don’t know.

[Dan Schiavetta]

I don't think Marshall gave it much thought, actually.

[Titus PUllo]

The first of many bad decisions. Judicial review for Federal law should be the owned by State Legislatures not the Federal Govt

[Dan Schiavetta]

The idea of judicial review of Congressional legislation preceded Marbury. In fact in Marbury it's dicta, and Marshall later said so.

Also notable is that Marshall should have recused himself.

[Syd Henderson]

It was a unanimous decision, so it would have happened. At that time all the justices had been appointed by Washington or Adams, though I don't know how much that figured in the decision.

[Dan Schiavetta]

Marshall himself (as Secretary of State) was the person whose refusal to deliver the commission to Marbury was at issue. As my Con Law teacher said, "If there was ever a case where a judge should have recused himself, it was this one."

[Area Man]

My understanding is that Marshall signed the commission, but it was Madison, not Marshall, who refused to deliver it. Still, the fact that Marshall signed it means he should have recused.

And if he had recused, then only 3 of the 6 Justices would have heard the case, as 2 were already recused. I don’t know if Court had quorum rules back then, but, regardless, Marshall’s absence may have made a difference in the outcome considering his influence on the other Justices.

[Syd Henderson]

The way the justices are shown, I got confused and thought they all voted. Marshall should have recused but if he had, he might have gone the rest of his term and not got another chance to establish judicial review. Unfortunately the next time it was used was Dred Scott v, Sandford, I wouldn't that as a precedent.

[Ak Mike]

Not at all dicta. Marshall's opinion is clear that the statute authorizing the Court to issue a mandamus would have allowed Marbury to win, but the statute was unconstitutional and the Court's duty was therefore not to enforce it.

[Dan Schiavetta]

His holding was that the Court did not have original jurisdiction over Marbury's dispute. Only at the end of the opinion did he start pontificating over the Court's power to rule on Constitutionality. This was obviously dicta and in a later case he himself said so. See Cohens v. Virginia (1821).

[DaivdBehar]

This horrifying, unconstitutional decision is void for illegality. It violates Article 1 Section 1 giving all lawmaking power to the Congress. Congress must approve all executive regulations and Supreme Court decisions or they are void. If you slimeball lawyers want judicial review, amend the constitution.

Here are ethical problems with this horrible decision. Reviewed here every year.

THURSDAY, JUNE 14, 2007
Marburygate or Misconduct in Marbury v. Madison
John Marshall is the greatest Chief Justice of the Supreme Court, Marbury v. Madison, 1803, the most important case. These are accepted dogma down to grade school. Arcane lawyer textbooks mention ethics problems, but quickly gloss over (1,2). Critical reviews go unread, not even referenced (3).

Facts

1. Double Dipping. Marshall was Secretary of State for Pres. John Adams, until inauguration, March 4, 1801. He served as Chief Justice of the Supreme Court February 4, 1801. Jefferson won the election, breaking an electoral tie, February 17. Article I, Section 6, the Incompatibility Clause, prohibits simultaneous service in the Executive and Legislative branches. Service in the Judicial branch is not expressly forbidden (4).

2. Nepotism. James Marshall, the brother was assigned the task of delivering the Justice of the Peace Commissions. These were not judgeships, but at will, executive branch agency jobs for the
administration of the District of Columbia. Salary was to come from the executive branch. James failed to deliver Marbury's commission prior to midnight, March 3. Jefferson was cousin to Marshall. They hated each other.

3. Personal Involvement. The undelivered commissions were left in the office of the Secretary of State Marshall. Marshall judged his own conduct in this case.

4. Supreme Court Jurisdiction. Mr. Marbury claimed the Judiciary Act of 1789 permitted a trial at the Supreme Court on a writ of mandamus. Article III, Section 2, The Original Jurisdiction Clause, assigns appellate jurisdiction in such matters. The Supreme Court so held, to their credit. But it chose to go on with the case. It held Section 13 of the Judiciary Act, conferring such jurisdiction to be unconstitutional. Although, it felt it proper to grant Marbury his writ, the unconstitutionality of that Section precluded doing so by lack of jurisdiction.

5. Conflict of Interest. There was a little tension between Federalist Court and Republican Congress. They canceled the Supreme Court sessions of June and December, 1802. They repealed the Circuit Court Act, forcing the Justices to ride circuit, once again. They removed Justice Pickering for alcoholism and insanity. They impeached Justice Chase, but failed to remove him.

6. Misreading. Section 13 of the Judiciary Act allows mandamus remedy where the Court has jurisdiction. It does not extend jurisdiction, in violation of Article III. If it were read properly, Congressional discretion to enlarge jurisdiction, in the Exceptions and Regulation Clause, would permit enlargement of jurisdiction. The central holding is therefore incorrect (5).

7. Judicial Power to Increase Judicial Power. In its trickiness and dodging, it is equally wrong to refrain from carrying out a duty to mandate delivery of a commission. May a Judge "refuse to do justice under the law in order to advance his own personal power and that of other judges"? (6)

Judge Disqualification in 1803

In English common law, judges could be disqualified for money interest in a case (7). The Act of May 8, 1792, permitted disqualification if the Judge was "concerned in interest," had "acted in the cause, or had "been of counsel."(8). In those days, judicial temperament was supposed
to overcome bias, as a judge duty.

Judge Disqualification Today

28 USC Section 4559 applies to Federal Judges, including those on the Supreme Court (9).

Marbury grounds for modern disqualification would include: "personal knowledge of disputed evidentiary facts", "served in governmental employment and in such capacity participated as counsel, adviser or material witness", "a person within the third degree of relationship"
is involved.

No waiver from the party adversely affected is permitted (Section 455 (e)).

Recourse.

There is no mechanism of enforcement if a Supreme Court Justice refuses to recuse voluntarily.

Exclusionary Rule II

What product or method of service from 1803 is acceptable today? None. If someone tried to sell carriages from those days for daily use, tried to practice the medicine of those days, they deserve to be arrested as a threat to public safety.

Why is a corrupt decision from 1803 holding sway? The answer is lawyer cover up, indoctrination of the nation, and worse, of themselves, and lawyer self-dealing. This cover up is for power, in furtherance of judge tyranny.

Summary impeachment is appropriate for challenged judges who violate federal statute on disqualification. Congress is unlikely to go through that difficult, time consuming process.

Failing impeachment, the decision should be voided automatically by statute. It is not enough to cancel the vote of the disqualified Justice. Given the secrecy and cover up at the Court, it is unknown if the disqualified Justice tried to convince, made deals, or otherwise influenced peers. That decision must be voided as "bearing the fruit of the poisoned tree." Marbury v Madison should be the first case so voided.

Footnotes

1. Barron, JA, Dienes, CT, McCormack, W, Redish, MH: Constitutional Law: Principles and Policy Cases and Materials. LexisNexis, Newark, NJ, 2002. Pp.11-12.
2. Chemerinsky, E. Constitutional Law, Principles and Policies. Aspen, New York, NY. 2002. Pp. 39-46.
3. Paulsen, MS: Marbury's Wrongness. Const Comment. 20: 343-357, 2003.
4. Id. at 350.
5. Id. at 353, summarizing several critics of this misreading.
6. Id. at 357.
7. Flamm, RE: Judicial Disqualification, Recusal and Disqualification of Judges, Aspen, New York, NY, 1996. P. 9.
8. Id. P. 10.
9. Bassett, DL: Judicial Disqualification in the Federal Appellate Courts, IA L Rev 87:1214-1256, 2002.

[apedad]

WOW!

You're like a Dr. Jekyll/Mr. Hyde.

Sometimes bat-shit crazy, ranting, spittle flying....

And, well, not as often, well written and rational.

Is it a choice you make or is the Mr. Hyde thing uncontrollable?

[Rev. Arthur L. Kirkland]

" well written "

which strongly indicates an unattributed pinch of another's writing

[DaivdBehar]

Supremacy Claus is David Behar.

[DaivdBehar]

Maybe what you call rants have been well thought out as well. You never know until you ask.

[apedad]

“Well thought out rants” is rather oxymoronic n’est-ce pas?

[F.D. Wolf]

This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a most case not before the court, is very irregular and very censurable. I recollect another instance, and the more particularly perhaps, because it in some measure, bore on myself. among the midnight appointments of mr Adams’ were commissions to some federal justices of the peace for Alexandria. these were signed and sealed by him, but not delivered. I found them on the table of the department of State, on my entry into office, and I forbade their delivery. Marbury, named in one of them, applied to the Supreme court for a Mandamus to the Secretary of State (mr Madison) to deliver the commission intended for him. the court determined, at once, that, being an original process, they had no cognisance of it; and there the question before them was ended. but the Chief Justice went on to lay down what the law would be, had they jurisdiction of the case: to wit, that they should command the delivery. the object was clearly to instruct any other court having the jurisdiction, what they should do, if Marbury should apply to them. besides, the impropriety of this gratuitous interference, could any thing exceed the perversion of law? for if there is any principle of law never yet contradicted it is that delivery is one of the essentials to the validity of a deed. altho’ signed and sealed, yet as long as it remains in the hands of the party himself, it is in fieri only, it is not a deed, and can be made so only by his delivery. in the hands of a third person it may be made an escrow, but whatever is in the executive offices is certainly deemed to be in the hands of the President; and in this case was actually in my hands, because when I countermanded them there was as yet no Secretary of state. yet this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on it’s being merely an obiter dissertation of the Chief Justice.

- Letter from Thomas Jefferson to William Johnson (June 12, 1823)

This letter from former President Jefferson to his first Supreme Court appointee, shows how furious Jefferson remained about the case 20 years after Marbury, 15 years after he had left office, and three years before his death.

[Bob from Ohio]

He should have gotten Congress to impeach Marshall, instead of just raging about it in a letter.

The nation would be better off.

[F.D. Wolf]

Oh, he tried.

On February 3, 1803, at the impetus of President Jefferson, the House impeached Washington appointee District Judge John Pickering, ostensibly for drunkenness and "illegal" rulings, though in reality because Pickering had gone senile. The Senate trial of Pickering was a sad, pitiful spectacle, and the Senate convicted and removed him on March 12, 1804, by a vote of 19-7.

The Federalists had objected to the impeachment for a number of reasons, including the fact that Pickering was not accused of any "high crimes and misdemeanors" as the Constitution. They also believed this was the beginning of a Republican scheme to purge the judiciary of Federalist judges and replace them with Republican judges. This fear seemed to be verified when, during the pendency of the Pickering trial, the House impeached Associate Justice Samuel Chase for "partisan rulings."

But Chase was a small fry and a test case. Everybody knew who the real target was: the most-hated bête noire of the Jeffersonians, Chief Justice John Marshall. Had Chase been convicted, it would have been virtually certain that Marshall would have quickly followed. But, for good or ill, the Senate decided that was a bridge too far, Chase was acquitted, and a precedent was set.

[Bob from Ohio]

The failure to remove Chase was a national tragedy, he should have been the figurative Admiral Byng of the Supreme Court.

[apedad]

WOW again.

First DB above sending some good facts and now BfO demonstrating some balanced historical interpretation.

I don’t get you guys.

Why are you so often whiney bitches?

Especially when (as shown today) you can bring some good stuff.

[Dan Schiavetta]

Some years ago, I was on a train when a crazy man got on and sat in the aisle seat. He was babbling incoherently and being really disgusting, eating a sloppy sandwich that was getting all over his beard. I was supposed to get off in two stops. Asking him to stand up might make him explode. What should I do? Jump over the seat in front of me?

He just wouldn't stop. Babble -- slobber -- babble -- slobber --

At our stop, I got my courage up, stood up and politely said, "Excuse me."

Babble -- slobber -- babble - slobber -- suddenly in a reasonable voice he said: "Oh O.K., sorry." He got up and let me pass.

"Thank you."

I looked back and half a second later he was back to babbe -- slobber -- babble -- slobber --