Today in Supreme Court History: February 11, 1803

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

Comments

[F.D. Wolf]

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?

Letter from Thomas Jefferson to William Johnson (June 12, 1823). https://founders.archives.gov/documents/Jefferson/98-01-02-3562

Charles Lee, who had been Attorney General under Presidents Washington and Adams, argued the case on behalf of Marbury. No one argued the case on behalf of Madison. Jefferson was utterly unconcerned. Either the Court would rule for Madison, or it would rule for Marbury, in which case, he would simply ignore it. It was a win-win for Jefferson.

Twenty years after the decision, fourteen years after he had left the White House, and three years before his death, Jefferson was still steaming about it.

[JoeFromtheBronx]

Marbury v. Madison set forth the principle of judicial review.

CJ Marshall would likely not have taken part today, given his role in this controversy. He also did not have to address the matter.

Some legal scholars think he easily could have avoiding doing so so. The allegedly unconstitutional provision (voted for by multiple Framers and signed by the person who presided over the Constitutional Convention), at the very least, could have been interpreted, by means of constitutional avoidance, to avoid problems.

Chief Justice Marshall, however, as he did in other cases, wanted to broadly establish precedent. He did so in a safe case: the decision in a fashion restrained the court's power.

It also directly involved federal judicial proceedings. A companion case (which he did not take part in) also upheld circuit riding (which justices hated) in part because it had been around for so long (around ten years!). It was a limited usage of judicial review.

Judicial review was not suddenly invented in 1803. Multiple justices had cited the power, which they said would only be applied to strike something down in a very clear case.

Jeffersonians asserted the power. Madison spoke of "independent tribunals" using the Bill of Rights to protect our liberty. Jeffersonians wanted the Supreme Court to overturn a federal carriage tax as an unconstitutional direct tax.

(Charles Beard, around 100 years later, put forth a good case that the original understanding supported at least some form of judicial review. Beard was not a fan of some of the rulings of his era.)

There was some dissent regarding judicial review (it had generally slipped away by the 1820s), but that is not what particularly pissed off President Jefferson. He thought it was misapplied.

He had the executive power to command that the commissions not be delivered. The commissions were not final until they were. And once the Supreme Court held they didn't have jurisdiction, the rest was inappropriate dicta.

[Syd Henderson]

Judicial review had already been asserted in Hylton v. United States, in this case upholding the law (by Samuel Chase, no less). Marbury v. Madison was the first time a law (or part of one) was struck down.

[JoeFromtheBronx]

Congress in 1792 authorized Revolutionary War veterans to file pension claims in circuit courts of the United States. Individual justices held that this was unconstitutional.

https://constitution.congress.gov/browse/essay/artIII-S1-4-4/ALDE_00013523/

(The evidence is somewhat unclear, but the Chandler and Todd cases seem to imply that the Court as a whole agreed.)

The justices also rejected President Washington's request for an advisory opinion as improper, given the case or controversy rule.

Judicial review might have been applied by lower federal judges in other cases. I recall one involving a paper money law, but can't find the citation.