How the Supreme Court Was Won

Objection! Marbury Is No Great Decision.
New books dissected over email.
March 5 2009 11:14 AM

How the Supreme Court Was Won

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The Great Decision is, as Eric notes, "lively and enjoyable." It paints vivid portraits of fascinating historical characters as they played a high-stakes game on a grand stage. It brims with authorial enthusiasm, energy, and earnestness. It is peppered with fun facts. (Many readers will be tickled to learn that the first occupant of the building we call the White House was not George Washington, John Adams, or Thomas Jefferson, but ... John Marshall!) It is accessible to a general audience. It may well kindle a love of law and history in young hearts. A good book gets general readers to think.

But The Great Decision does not offer up big new ideas or freshly discovered facts that cause me to change my basic point of view about courts and the Constitution. A great book forces even experts to rethink.

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Like Eric, I was disappointed by the failure of The Great Decision to pay close attention to serious academic scholarship about Marbury and about constitutional law more generally. For example, on the book's second page, the authors ask, "Why is Marbury considered the greatest decision in American law?" Objection! Assuming facts not in evidence! Considered by whom? Many top scholars do not see Marbury this way. If the word decision here means "constitutional decision," surely Lincoln's constitutional decisions to resist unilateral secession and later to issue the Emancipation Proclamation were far more significant. (Indeed, by this test, Marbury probably wasn't even the most important constitutional decision of 1803, as compared with Jefferson's Louisiana Purchase.)  If "decision" means judicial decision, along what dimensions is Marbury greatest? Legal craftsmanship? Highly doubtful even if we consider only opinions by Marshall himself. (I teach my students McCulloch v. Maryland before Marbury precisely because I think McCulloch is a better exemplar of legal craft.) Political adroitness? Perhaps, but here too there are many contenders, and the authors sing odes to "the rule of law," not pure political savvy. Actual effects? Also doubtful. The basic theory of judicial review was robust long before Marbury, and the actual practice of judicial review was paltry long after Marbury.

Indeed, many leading scholars would challenge the book's basic description of Marbury's holding and meaning. The book repeatedly speaks as if judicial review is a power unique to the Supreme Court. It is not. It is a power shared by all courts in America (unlike the modern European model in which one court sits de jure as a constitutional court). Time and again, the book says that the Supreme Court is a "branch" of government. It is not. The federal judiciary as a whole is the branch, and not one word in Marbury is unique to the Supreme Court as distinct from other federal courts. (Much of Marbury's language applies even to state courts.)  These seemingly hyper-technical points about court vs. branch are key when, for example, we consider whether Congress may ever shift jurisdiction over constitutional cases from the Supreme Court to other federal courts. Indeed, early Congresses declined to provide for general Supreme Court review of lower federal courts in criminal cases even if those cases pivoted on constitutional issues—a fact the book leaves out of its otherwise nice discussion of the infamous 1798 Sedition Act.

The book repeatedly suggests that Marbury asserted that the judiciary was the Constitution's "final arbiter" and "ultimate authority." Actually, the Marbury of 1803 did not quite say that. According to many recent scholars, the Marbury of 1803 was rather more modest, asserting that courts would play a role in interpreting the Constitution alongside the roles played by other branches. The challenge, then, is to explain more clearly how the case later came to stand for a much broader judicial (and Supreme Court) role than originally asserted.

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Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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