A Spider on Its Smooth Line
How the Supreme Court Was Won
A Spider on Its Smooth Line
New books dissected over email.
March 5 2009 1:45 PM

How the Supreme Court Was Won


Akhil, Dahlia, Eric, and Cliff:

Like Eric, Dahlia, and Akhil, I have nothing but praise for the rich historical background The Great Decision  provides for the ruling it celebrates. When I teach constitutional law next semester, I will spangle my two lectures on Marbury with details from this book and recommend it to the many students who wish to better understand the period. The book's marvelous treatment of Marbury's context, however, stands in stark contrast to its treatment of the opinion's text.


Marbury v. Madison is "the great decision" in significant part because it is an extraordinary rhetorical artifact. I can say this without disagreeing with the low grade Dahlia gives the opinion. I am reminded here of Richard Posner's claim that if Justice Holmes' Lochner dissent were to be graded as part of a law-school examination, it would not merit a high mark. Nonetheless, as Posner the Elder correctly claims, Holmes' opinion still deserves its canonical status. Few readers will soon forget the trochaic pentameter of "Mr. Herbert Spencer's Social Statics."

Marbury also falls through constitutional history like a spider on its smooth line—"It is emphatically the province and duty of the judicial department to say what the law is." But Marbury is much more than this line, and a much more sustained rhetorical achievement than Lochner. I agree with Posner the Younger's claim that Marbury contains a "series of unsupported assertions" but disagree with Eric's assertion that Marbury "is not a brilliant text that repays study." To the contrary, I think Marbury repays study for how it gathers that series of unsupported assumptions toward a conclusion that it renders much more plausible than it actually is.

To vouch for this is no proof, so let me give a familiar example of Marbury's rhetorical accomplishment, which is alluded to on Page 162, but not developed. As many constitutional scholars have posited, Marshall fabricates the conflict between the congressional statute at issue and Article 3 of the Constitution. The ostensible conflict is that the Judiciary Act gives the Supreme Court the power to issue a writ of mandamus (an order to a governmental official to carry out a nondiscretionary duty) while serving as a trial court, while the Constitution permits it to do so only while serving as an appellate court.

The Great Decision faithfully describes Marshall's framing of the issue but does not really give the lay reader the tools to challenge the chief justice's characterization of the case. In fact, the Congressional Act can be fairly read to permit the court to issue writs of mandamus only after jurisdiction has been properly established, a reading under which the conflict between the statute and the Constitution disappears.

By failing to articulate just how easily the statute and the Constitution could be harmonized, Cliff and his co-author, David, deprive the reader of a full sense of Marshall's extraordinary persuasive powers. Through his rhetorical skill, Marshall makes the collision of the Judiciary Act and the Constitution as inexorable as Thomas Hardy makes the collision of the Titanic and the iceberg in his celebrated poem "The Convergence of the Twain." As Hardy puts it: "And as the smart ship grew/ In stature, grace, and hue/ In shadowy silent distance grew the Iceberg too." So framed, the collision and its consequence are inevitable.

Hence I would qualify Akhil's comment that Marshall showed greater legal craftsmanship in McCulloch than in Marbury. McCulloch is incontestably better reasoned than Marbury, but it is also a dive with a lower difficulty rating. Marbury is impressive precisely because it requires more contortions on the way to its low-splash conclusion. Moreover, my example above is only one of the ways in which Marshall had to use his silver tongue to make the unlikely plausible. At the end of his opinion, for instance, he jumbles together stronger arguments for constitutional supremacy with weaker arguments for judicial review to make these arguments seem like a package deal that the nation must take or leave.

I will not belabor this analysis here, lest I sound like an academic bore. Indeed, Cliff and David may have been obeying the same instinct in omitting close textual analysis in a book intended for lay readers. But if that was the case, Cliff, (was it?) I think you made the wrong call, for at least two reasons. First, your ability to make legal analysis accessible is on display in every chapter of this book. If you had wished to do so, you could have made Marbury's text as unforgettable as you made its context. Second, by eschewing a critical reading of the opinion, you keep readers from a full understanding of Marshall's rhetorical genius. In doing so, you obscure a part of what made "the great decision" so great.

Slate V: Cliff Sloan on Charlie Rose

Kenji Yoshino is Chief Justice Earl Warren professor of constitutional law at NYU School of Law and the author of Speak Now: Marriage Equality on Trial.

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