How the Supreme Court Was Won

Is the Historic Case Marbury v. Madison All It's Cracked Up To Be?
New books dissected over email.
March 3 2009 7:00 AM

How the Supreme Court Was Won

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Akhil, Eric, Kenji, and Dahlia—

Thanks for joining me in this discussion on The Great Decision, my new book (written with David McKean).

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Nicolas Cage fans know from the movie National Treasure that the sacraments of our national identity are carefully preserved at the National Archives, on Pennsylvania Avenue midway between the White House and the Capitol. Long lines of visitors wait to glimpse the Declaration of Independence, the Constitution, the Bill of Rights … and the Supreme Court's opinion in Marbury v. Madison.

Famous as it is to lawyers, many Americans have only a dim memory from high school of the decision, which first established that the Supreme Court can strike down an act of Congress as unconstitutional. As we consider the nation's commitment to the rule of law with the onset of a new presidential administration, it is a particularly apt time to look at the saga and meaning of Marbury.

The case arose from a bitter political dispute. In February 1801, John Adams had lost his bid for re-election, the first such ouster of an American president. In his last days and hours as president, Adams feverishly packed the federal courts and the new capital, Washington, D.C., with loyal Federalists and "midnight" appointments, an act that deeply irked the new president, Thomas Jefferson. Soon after his inauguration, Jefferson found a pile of letters sitting on a table at the State Department. Jefferson rifled through the envelopes and realized that they contained last-minute commissions for federal posts that mistakenly had not been sent. He immediately forbade their delivery. One of the intercepted letters was a justice-of-the-peace commission for William Marbury, an ambitious Federalist striver.

And so the case began, with nobody suspecting that a landmark was in the works. Marbury sued James Madison, Jefferson's secretary of state, demanding the delivery of his commission. On Feb. 24, 1803, the Supreme Court, in a unanimous opinion by Chief Justice John Marshall, blasted Jefferson and Madison for breaking the law. But the court also found that the federal law giving individuals like Marbury the right to bring suits (to seek "mandamus," in legalese) directly to the Supreme Court violated the Constitution. Subject to but a few exceptions, the Supreme Court, the opinion decreed, hears appeals from other courts, not original lawsuits.

It was the first time the Supreme Court had struck down an act of Congress as unconstitutional. The opinion signaled no less than the emergence of the American rule of law. In some of its most famous words, the Marbury court pronounced, "It is emphatically the province and duty of the judicial department"—the courts—"to say what the law is." The decision established this enormously consequential authority for the Supreme Court, which some Jeffersonians bitterly opposed.

Marbury is the bedrock of our constitutional law. The Supreme Court has invoked it in moments of national crisis and constitutional greatness—for example, in enforcing Brown v. Board of Education against defiance in Little Rock, Ark., or in ordering President Nixon to turn over his tapes. Justice Sandra Day O'Connor has correctly observed that, in light of Marbury, we all have rights that no president and no Congress—no political majority—can take away. Justice John Paul Stevens told David and me that he finds Marbury a continuing inspiration and cites it whenever he can. Nations around the world look to Marbury as they build institutions that will protect the rule of law.

This is Marbury on a pedestal. Our book argues that it richly deserves that lofty perch. But, as I'm sure you all know, many academics love to castigate Marbury. Some say its role is exaggerated. Others say the decision was simply a manipulative power grab by John Marshall. Still others say, no, it was abject capitulation—that Marshall invented the unconstitutionality of the statute to avoid a confrontation with Jefferson, which the Supreme Court surely would have lost.

Akhil, Eric, Dahlia, Kenji, what do you think? Does Marbury warrant its iconic role, as our book maintains? Or do the revisionists and detractors have the better of the argument?

And, in considering that question, what do we make of the case's messy, human context? To take just a few examples: Marshall, the new chief justice, and Jefferson, the new president, were cousins—and they hated each other. Marshall was deeply involved in the underlying facts of the case. He was one of Adams' closest advisers on midnight appointments while simultaneously serving as chief justice and secretary of state, and he was personally responsible for the delivery of the commissions, including the bungle of Marbury's. The Supreme Court heard arguments from only one side in the case because Jefferson's attorney general refused to dignify the proceedings by giving any arguments on behalf of Madison.

To my mind, none of this detracts from Marbury'sgreatness. In fact, for me, these complexities only add to Marbury'simpressive accomplishment because the monument for the ages emerged from this muddled milieu. Do you agree?

I look forward to your thoughts and comments.

Best,
Cliff

Slate V: Cliff Sloan on Charlie Rose

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.