How the Supreme Court Was Won

The Madeira-Swilling Great Decider
New books dissected over email.
March 3 2009 2:12 PM

How the Supreme Court Was Won

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Hi all,

Cliff puts Marbury on a pedestal but observes that the opinion has its academic detractors. My one parochial complaint about this lively and enjoyable book is that the natterings of my tribe are confined to a single footnote (!) on Page 179. This footnote reports that academics have quibbled over the legal craft of Justice Marshall's opinion, and I suppose that is true if quibbling means exclaiming, "Hey, he doesn't give any reasons!"

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In fact, although Cliff marvels at the reasoning of the opinion, he doesn't really defend it. Instead, he points to what he sees as the good consequences of the opinion for the ages. He claims that Marbury established judicial independence—the principle that politicians can't tell judges how to decide cases. But Marbury established judicial review of federal statutes, not the broader concept of an independent third branch. A country can have judges who do not take orders from politicians without also giving those judges the power to strike down statutes. This is indeed the case in many countries in Europe and elsewhere, where civil liberties are just as robust as they are in the United States.

And that is why I wonder about Cliff's argument that Marbury gave courts the power to protect our freedoms. The relationship between judicial review and freedom is at best complex. Following its rather narrow disapproval of a jurisdictional statute in Marbury, the Supreme Court did not actually strike down another federal statute until 1857. Yet during that half-century, freedom expanded enormously with the extension of the voting franchise. And in the 1857 case, Dred Scott, the justices struck down a statute that would have limited the spread of slavery. Later, the court struck down New Deal legislation that attempted to address an economic crisis that immiserated millions. After World War II, the court did strike down statutes that, based on a modern view, infringed on freedoms. But most of these statutes (such as those enforcing segregation and barring abortion) came from the states, and the court's power to strike down state legislation was not at issue in Marbury. How all of this nets out for Marbury, then, is obscure.

Indeed, Cliff doesn't seem all that interested in proving that Marbury has had all the good consequences he attributes to it. The casual references to debates about whether judicial review advances freedom or interferes with democratic self-government occur in a last chapter, which forgets that Marbury had rather limited scope (about which there remains some dispute among academics) and converts it into a symbol of all that is good about the American judiciary.

In fact, the heart of the book lies not with Marbury but with the dust and grime of Washington, D.C., at the dawn of the 19th century and the vivid personalities who inhabited it. Or, really, one personality in particular: Justice Marshall. The title of the book may be the Great Decision; its subject, gazing out at us from the cover, is the Great Decider.

Justice Marshall is an irresistible American personality. Convivial, Madeira-swilling, brave (a soldier during the Revolution), tough, pragmatic, loyal (to George Washington, whose biography he wrote), honest (distinguishing himself in a bribery scandal), and shrewd, Marshall cuts a far more appealing figure than his antagonist, the feline Jefferson, who comes across in this telling as conniving and pusillanimous. In 1803, Jefferson was president and his party controlled Congress. He had all the power and all the advantages. Marshall belonged to a party and held a philosophy that had been thrashed in the recent election. With his allies in retreat and at odds with one another, Marshall stood alone. He had nothing but an office in a derided institution "that was little more than a laughingstock, with no dignity or stature," quoting from Page 151. He risked impeachment from the court and knew it. Despite all these disadvantages, Marshall, the plucky Karate Kid-like underdog, wrote an opinion that would strengthen his Supreme Court, rally his political allies, provoke Jefferson to helpless rage, and establish an important, albeit controversial, political principle that, for better or worse, would survive for centuries.

Even today, Cliff reports, Supreme Court justices clutch Marbury like a teddy bear during moments of peril. But it is unlikely that they actually read it. The opinion is not a brilliant text that repays study or sheds light on American political institutions; it contains routine legal reasoning, a series of unsupported assertions, and one memorable line. The justices draw inspiration not from the case but from the man who decided it. The book celebrates a specific virtue that Cliff assigns to Marshall—the virtue of political courage.

And yet the book cannot idolize Marshall too explicitly. We are a nation of laws, not of men, aren't we? On the last page, the book reports the intermarriage of the families of Marbury, Marshall, and Jefferson, taking this to symbolize the unifying role of the case for American political culture (rather than the clannishness of American elites). This awkward peroration, with its weird mingling of texts and personalities, and its unconvincing gesture at transcendence, betrays anxiety, I think. Do we owe our freedoms to our institutions or to the fortuitous interventions of great men, who may not appear again when we need them most?

Best,
Eric

Slate V: Cliff Sloan on Charlie Rose

Eric Posner, a professor at the University of Chicago Law School, is author of The Twilight of International Human Rights Law. Follow him on Twitter.

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