Most people have heard of Marbury v. Madison, certainly the most important decision ever issued by the United States Supreme Court. Marbury is remembered today as the case in which the Supreme Court gave itself the power of “judicial review” — the ability to decide whether statutes are unconstitutional. Most people do not know, however, that it is also one of the sneakiest court opinions ever written.
William Marbury was a “midnight judge.” He was appointed as a minor federal judge (a “justice of the peace”) by President John Adams literally in the last hours of Adams’ presidency. Adams, a staunch Federalist, was unhappy that his single term as President was about to end, and even more unhappy to be replaced by his old friend — now bitter political enemy — Thomas Jefferson. So, to prevent Jefferson from filling these judgeships, Adams hurried to fill appointments before Jefferson took office.
When Jefferson took office in 1801, however, one important step in the judicial appointment process had not been completed. In order for Marbury to assume office formally, he needed to receive his “commission” — at that time, the document signed by the Secretary of State attesting to the appointment.
Well, good help was as hard to come by in 1801 as it is today, and Adams’ own secretary of state failed to take care of that little task before leaving office. Jefferson himself literally found several commissions sitting on a table in the State Department desk that hadn’t been delivered to Marbury and four other judges.
Knowing that “delivery” of documents was an important step in making something “official,” Jefferson directed his Secretary of State, James Madison, not to do so. So Marbury filed a lawsuit directly with the United States Supreme Court, asking that Madison be ordered to deliver his commission.
Marbury knew that the Chief Justice, John Marshall, and the other justices on the court were all Federalists likely to support his position. So it must have seemed like a safe bet that they would win the case before this venerable, but somewhat prejudiced, body.
But Chief Justice Marshall and the other justices had a larger problem facing them: Congress was now also controlled by Jefferson’s party, and they faced the very real prospect of impeachment and removal from office if they rendered the “wrong” decision — one favoring Marbury, even if the legal reasoning itself was, um, unimpeachable.
The case dragged on for more than a year, as it seemed that the judicial appointment Marshall most wanted to protect was his own. But Marshall also didn’t want to rule in favor of the Jefferson Administration, either.
Finally, in February, 1803, the decision was announced. Marshall broke his analysis down into three parts. The first two questions were whether Marbury was entitled to his commission; and, whether the form of order Marbury asked for (a “writ of mandamus” — a court order to a lower-level official to comply with a legal duty) was the proper remedy to seek. Marshall answered both of these questions “yes.”
He reached the last question: was the Supreme Court the proper court to issue such a writ? Marshall explained that Marbury had selected the Supreme Court because the Judiciary Act of 1789 — the second law ever passed by the Congress — said that he could file such a lawsuit directly in the Supreme Court.
But referring to the text of the U.S. Constitution itself, Marshall said that in only a small group of cases, mainly two states suing one another or cases involving foreign ambassadors, was it proper to file a lawsuit directly in the Supreme Court. Marbury, therefore, should have gone to the federal trial court, not the Supreme Court. And if the Judiciary Act said Marbury could file his case directly in the Supreme Court, well, to use a new term, it was “unconstitutional.” Marbury would have to re-file his lawsuit in the district court down the street.
The case is rich with irony. Jefferson and the new Congress could hardly impeach the justices when Jefferson’s side had won . . . though on a technicality that gave the district court an easy path to follow if Marbury refiled his case. And in a trivial case over a judicial seat, the Supreme Court discovered a new power no one had realized it had before.
But the most biting irony about the case is that Adams’ secretary of state, who left office in too much of a rush to deliver Marbury’s commission was John Marshall himself! Marshall had asked his brother James to deliver the commissions, and when James couldn’t find William Marbury, he simply took the undelivered commissions back to the State Department — where newly-elected Pres. Jefferson found them on that table.
Our legal lore is the richer for his little mistake.
Frank Zotter, Jr. is a Ukiah attorney.
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