How the Supreme Court Was Won

Marbury: It Wakes You Up
New books dissected over email.
March 5 2009 4:31 PM

How the Supreme Court Was Won

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Akhil, Dahlia, Eric, and Kenji—

Thank you for your extraordinarily thoughtful and interesting comments.

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Immersing ourselves in Marbury v. Madison, David McKean and I were struck by the gap between the public appreciation of Marbury—which includes a range of Supreme Court justices—and the widespread academic contempt for the decision. (Kenji, your admiration of Marbury, at least for its "rhetorical" achievement, is as welcome as it is unusual.) We think that the public and the justices have much the better of the argument.

In many ways, David and I set out to put Marbury in its original context—a drama followed closely by the popular newspapers of the day and vigorously discussed in taverns and parlors throughout the nation, rather than the subject of academic conferences with participants vying for the best line of attack. Eric, you object that we devote only a very brief discussion to the academic assaults on Marbury. Precisely. The wide-ranging academic denunciations of Marbury are frequently contradictory, and, quite frankly, we do not think they are the best way to approach or understand the case. Marbury v. Madison does not belong just to lawyers, law students, and law professors. It is a powerful, riveting story of politics, history, and our national identity, rife with implications for today's issues and debates.

We do outline the major schools of criticism. Many of the comments on Marbury that have been raised in the discussion in these pages fall comfortably in one or another of those established lines of attack—for example, that Marbury's role is exaggerated (one of your suggestions, Eric); that the decision reflects manipulation by John Marshall (a frequent comment in the posts); that subsequent generations have twisted Marbury to mean something different than it meant at the time (one of your submissions, Akhil); and that Marshall's craftsmanship was mediocre (your C+ grade for the decision, Dahlia). Kenji, you raise an entirely different point—that many, including us, actually fail to give Marbury sufficient credit for its craftsmanship. You are right that David and I were determined to keep the book accessible for the general reader, and perhaps we could have highlighted the judicial wizardry of the opinion more than we did.

Certain characteristics about Marbury v. Madison are, I think, indisputable. Marbury was the first Supreme Court decision ever to strike down an act of Congress as unconstitutional. Marbury stands for the authority of the Supreme Court to have and to exercise that power. The Supreme Court's possession of that power is a fundamental characteristic of the American rule of law. None of that reasonably can be challenged.

And now to the disputable, but, to my mind, persuasive next point. Even though there are other possible legal models (such as the European examples which you mention, Eric), the American rule of law (of which Marbury and the principle for which it stands are a lynchpin) has been and remains, for all of its occasional imperfections and difficulties and for all of our vehement disagreements about particular issues and cases, the most protective of liberties and rights in the world. That is why, as professor A.E. Dick Howard testified to Congress, nations around the world look to Marbury as an inspiration when they are crafting institutions to safeguard the rule of law.

The gap between the public view and the academic view of Marbury is perhaps most clearly shown in Akhil's comment about our statement early in the book that Marbury is "considered the greatest decision in American law." Objection, says Akhil—considered by whom? Certainly not by the academy. Well, as we said in the book, the National Archives displays Marbury to throngs of visitors as "one of the cornerstones of the American constitutional system" right after its display of the Declaration of Independence, the Constitution, and the Bill of Rights. Later in the book, we also explain that no less than former Chief Justice William Rehnquist, Justice Sandra Day O'Connor, and Justice John Paul Stevens are among those who also have hailed the greatness of Marbury.

For some of you, that perspective may not be as notable as the academic criticisms of Marbury. But, in our view, the achievement of Marbury, as the first case in which the Supreme Court strikes down an act of Congress as unconstitutional, warrants the place that the public and the justices have given it—as a "great decision" that has served us exceedingly well.

Let me close with a story that, for me, illustrates the continuing power and force of Marbury. When I clerked for Judge J. Skelly Wright on the United States Court of Appeals for the District of Columbia Circuit, we had a case in which a federal agency seemed to be ignoring the D.C. Circuit's view of the law. One of my co-clerks wrote a draft opinion for the judge's review, which began with the famous words of Marbury—"It is emphatically the province and duty of the judicial department to say what the law is." Judge Wright came into our clerks' room, flipping the draft in his hands, and said, "You know, when you see Marbury v. Madison first thing in the morning, it really wakes you up." That's what Marbury does for us as a people. It wakes us up to the rule of law, and to the importance of that fundamental principle.

Thanks again for your close attention to The Great Decision.

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.

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