The Supreme Court is considered the ultimate arbiter of whether laws are in line with the United States Constitution. But how did they achieve this power? It isn't outlined in the original document.
Judicial review, or the authority to determine whether a law is constitutional, came as the result of one of the most infamous court cases in United States history: Marbury v. Madison.
So tune in as I discuss how we got judicial review and how John Marshall set the court on a historic journey with one decision.
“Article 3: Judicial Branch.” Constitution Center. Accessed July 28, 2021. (LINK)
“Biographies of the Secretaries of State: John Marshall (1755 - 1835). Office of the Historian. Accessed July 29, 2021. (LINK)
“Building History.” Supreme Court of the United States. Accessed July 27, 2021. (LINK)
“Circuit Riding.” History of the Federal Judiciary. Federal Judiciary Center. Accessed July 28, 2021. (LINK)
Hamilton, Alexander. Federalist 78. The Avalon Project: Documents in Law, History and Diplomacy. Yale Law School. Accessed July 29, 2021. (LINK)
"Marbury v. Madison." Oyez. Accessed July 29, 2021. (LINK)
Smentkowski, Brian P. “John Marshall.” Encyclopedia Britannica. Accessed July 27, 2021. (LINK)
“The Court as an Institution.” Supreme Court of the United States. Accessed July 27, 2021. (LINK)
“The Judiciary Act; September 24 1789.” The Avalon Project: Documents in Law, History and Diplomacy. Yale Law School. Accessed July 29, 2021. (LINK)
“The Power to Issue Writs: The Act of 1789.” Legal Information Institute. Cornell Law School. Accessed July 27, 2021. (LINK)
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Welcome to Civics and Coffee. My name is Alycia and I am a self-professed history nerd. Each week, I am going to chat about a topic on U.S history and give you both the highlights and occasionally break down some of the complexities in history; and share stories you may not remember learning in high school. All in the time it takes to enjoy a cup of coffee.
Hey peeps, welcome back.
In 1973, the Supreme Court of the United States declared in Roe v. Wade that laws prohibiting abortion was a violation of the Due Process clause of the Fourteenth Amendment and therefore unconstitutional and by extension illegal.
While the courts put limitations on their decision in Roe, the crux of the matter was the Supreme Court reviewed a state law and compared it to the text of the constitution and its amendments and decided the law to be in violation. But just where did this authority come from? How was it established?
That, my friends, is the subject of this episode. Today I am diving into the Supreme Court case Marbury v Madison.
Grab your cup of coffee, peeps. Let's do this.
Article three, section one of the United States Constitution reads as follows, quote:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
End quote. Very little details were provided as to how the supreme court should be established and what authority it had. Aside from specifying it is a separate branch of government and that justices would serve for life if well behaved, there wasn’t a whole lot of explanation provided as to just how the court should function and what power, if any, it exerted.
In the first few years of the republic, the supreme court was not viewed as an all powerful co-equal branch of government. In fact, the court was viewed as small and ineffectual, reliant in part on the executive branch. Alexander Hamilton argued this point in Federalist 78 when trying to convince citizens to vote to ratify the constitution and accept the establishment of a supreme court. Hamilton explained the court's quote “have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” End quote.
Nothing to be afraid of, right? Once the constitution was ratified, the court assembled with one chief justice and five associate justices. Unlike the grand marble palace which stands today, the first sessions of the supreme court took place in borrowed space and judges were expected to ride circuit - or serve in different geographical locations throughout the country. The Supreme Court met for the first time on February 2, 1790 in the Merchants Exchange Building in New York, then the nation’s capital. As the capital moved, so too did the court, often borrowing space in state houses. When the capital moved to Washington, DC, the court still lacked a permanent building and met in the capitol building to hear cases.
In essence, the Supreme Court did not have the stature we’re used to reading about in the history books. But it was one case - and one very influential chief justice - that would change the course of history and infuse the court with a vast amount of power.
As you know from a previous episode, John Adams lost his re-election bid to Thomas Jefferson in the election of 1800. And though he would no longer continue to serve in the executive office, his tenure did not officially end until March 4th, some three months after he learned of the results. Perhaps in response to the fear of the incoming Jefferson administration, Adams, with the aid of the lame duck outgoing federalist congress, appointed a number of judges to posts throughout the country, thereby guaranteeing a federalist check on the incoming administration.
Critics charged Adams with packing the court with these midnight appointments given the timing. Adams appointed sixteen new court of appeals judges, forty-two justices of the peace and reduced the supreme court membership from six to five when a justice retired, eliminating Jefferson’s opportunity to appoint a replacement.
Unlike today where there are phones, email and instant access to information, notification of job placements took a bit longer and though the president made these appointments, and congress approved them, they still needed to be delivered to be considered fulfilled as judges were not allowed to start their roles without the official documentation. Racing against the clock, outgoing Secretary of State and newly appointed chief justice of the Supreme Court John Marshall rushed to issue each commission. Though Marshall was able to deliver a large proportion of the appointments, a few were not delivered ahead of the March 4th inauguration of Thomas Jefferson and was left on a desk, awaiting the incoming administration.
William Marbury, a businessman from Maryland, was one of those expecting a commission and was not too pleased when James Madison, newly appointed Secretary of State, refused to deliver. After unsuccessfully petitioning the Secretary for his commission, Marbury decided he would sue the federal government. Believing the supreme court had jurisdiction in the matter as the result of the Judiciary Act of 1789, Marbury petitioned directly to the supreme court and did not start his lawsuit in the lower courts, therefore bypassing the appeals process. Marbury asked that a writ of mandamus - or an order from the court to force a government official to do their job - be issued to Madison to deliver the commission signed by Adams.
In Jefferson and Madison’s eyes, the court appointments were not valid and therefore they had no requirement under the law to deliver the commissions from the prior administration. They believed they should be allowed to appoint their own justices and Madison even refused to show up to the court preceding, finding the whole matter silly.
The lawsuit brought forth the legal question as to whether the Supreme Court could review the case per what was originally included in the constitution and further - if they were allowed to review the case, what authority did they yield in order compel another branch of government to cooperate. The court, led by newly appointed chief justice John Marshall was at a bit of a crossroads.
And just who was John Marshall? Born in Germantown, Virginia on September 24, 1755 Marshall was the eldest of fifteen children. He served in the American Revolution, joining the Continental Army in 1776 and served under George Washington. He was considered a strong Federalist and was offered a number of positions within his administration, all of which he respectfully declined. After assisting in the XYZ affair under Adams’ administration, he finally accepted a post within the cabinet - serving as his Secretary of State.
The appointment didn’t last too long as Adams was defeated in his reelection bid several months later, but on his way out, Adams had one final job for Marshall - Chief Justice of the United States Supreme Court. Marshall was aware of the court's ineffectiveness and found himself in a difficult spot. Jefferson, already angered at the midnight appointments, was convinced Marshall was out to undermine the administration via his rulings from the bench. If the court found in favor of the plaintiff and issued the writ, Marshall knew full well the likelihood of the order being followed was minimal, thereby further reducing the importance and authority of the court.
However if the court denied the claim, Marshall worried the court would appear weak and submissive to presidential pressure.
He was focused on how to make the best decision for the court’s legacy. With his back against the wall, he danced on a very thin high wire and managed to exert the authority of the court without giving Jefferson’s administration a chance to test it.
In the court’s opinion, Marshall posed three points. First, the court found that no one is above the law, including the president and the cabinet, and thereby could be subject to a writ of mandamus. Second, the court found the writ of mandamus was the correct remedy given the situation. But it was the final part of the decision that set the standard for judicial review and forever altered the influence of the supreme court.
In September of 1789, congress passed a judiciary act expanding the court’s original authority. In the constitution, the supreme court’s jurisdiction was limited quote:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
End Quote. But under the language of the new act, the Supreme Court was given the authority to issue writs of mandamus. Marshall found that Congress had overstepped its authority in providing the expanded powers to the court since said powers were not expressed in the constitution. In the ruling, Marshall declared that when there is conflict between federal or state laws and the constitution, the constitution was the winner.
In writing the opinion of the court, Marshal stated “it is emphatically the province and duty of the judicial department to say what the law is,” he asserted the court’s place as the branch of government responsible for safeguarding and interpreting the constitution. He continued, writing, “thus the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void.”
So while Marbury lost his case, the Supreme Court - in a deft and intelligent move by Marshall, gained the ultimate authority. Marshall provided the Supreme Court with the final word as to whether a law is considered constitutional, therefore providing for a backstop against laws which they determined were in violation. He managed to both avoid issuing an order that would go ignored and increasing the stature of the court all in one decision.
The act of judicial review is a common practice among the supreme court today. Like I mentioned at the top of the show, the Supreme Court utilized judicial review in Roe, but also in such landmark cases such as Brown v Board of Education and the Defense Against Marriage Act.
Though Judicial Review may be the most impactful legacy Marshall left on the court, it’s hardly the only way his tenure influenced future generations of justices. Marshall appeared in court in a simple black robe, contrasting himself with other justices who wore more ornate gear. Prior to Marshall, each justice would submit their opinion of the law in a case before the court. With his leadership, the court provided a single opinion, allowing the justices to speak with authority under one voice.
Marshall’s tenure as chief justice - from 1801 to 1835 - remains the longest tenure of any chief justice in American history. Despite leaving office in an unfavorable light, former president John Adams was proud of his court pick saying quote, “My gift of John Marshall to the people of the United States was the proudest act of my life.” End quote. Big words from a guy who spent his adulthood fighting for the creation of a new nation.
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