Marshall Gave Up William Marbury's Commission to Win the Bigger Argument

The most successful loss in American legal history belongs to a man who never got the job he sued for. William Marbury asked the Supreme Court for a piece of paper, a commission as justice of the peace in the District of Columbia, and the Supreme Court told him that he was entitled to it, that the government had wronged him, and that he could not have it. Then the Court went home having won, for itself and for the Constitution, something far larger than a minor judgeship.

If that sounds like a trick, it was a very good one, and I mean that as praise. The case of Marbury v. Madison (1803) is taught as the birth of judicial review. It is better understood as a lesson in restraint, and the distinction matters a great deal to anyone who thinks about what courts are for.

The midnight appointments

The story begins with an election. In 1800 Thomas Jefferson defeated the incumbent John Adams, and the Federalist Party lost both the White House and Congress. The Federalists did not leave quietly. In the last weeks of Adams's term, the lame-duck Congress passed the Judiciary Act of February 13, 1801, which created new federal judgeships, and a second law on February 27 authorizing the President to appoint justices of the peace for the District of Columbia. Adams nominated, and the Senate confirmed, a long list of Federalists to the new offices. Critics later called them the "midnight judges," because the work went on until the final hours of Adams's presidency, which ended on March 3, 1801.

The commissions, the signed and sealed documents that made an appointment official, were prepared by the Secretary of State. And who was Secretary of State? John Marshall. Adams had appointed him Chief Justice, and he had taken the oath in early February 1801, but he continued to serve as Secretary of State until the end of the administration. In the rush, some of the commissions for the District justices of the peace were signed and sealed but not delivered by the time Jefferson was inaugurated on March 4. Marshall's brother, it is reported, was among those who helped deliver them and could not finish the job.

When Jefferson took office, he told his Secretary of State, James Madison, not to deliver the remaining commissions. William Marbury, a Maryland businessman and Federalist, was one of the men whose commission was in that undelivered pile. Marbury and others petitioned the Supreme Court in December 1801 for a writ of mandamus, an order to Madison requiring him to deliver what the law entitled them to.

The political thicket

Now consider what the Court's position looked like. Marshall was in the odd position of being, in effect, a witness in a case in which he sat as a judge. Modern standards of recusal would almost certainly have kept him off the bench. The chief justice who wrote the great opinion had a personal connection to the underlying facts, which his critics have noted ever since and which no honest account of the case should omit.

A second problem was political. Jefferson's party controlled Congress, and it was angry at the Federalist judiciary. In March 1802, Congress passed the Repeal Act, which repealed the Judiciary Act of 1801. And then, in April 1802, it passed another law that rearranged the Court's terms and left it without a session in 1802. The Supreme Court did not sit between December 1801 and February 1803. The message from the legislature was not subtle: the judiciary could be reduced and rearranged by ordinary legislation.

So when the case finally came before the Court in February 1803, the question was not only whether Marbury was entitled to his commission. It was whether the Court could, in the face of a hostile President and a hostile Congress, exercise any real authority at all. If it ordered Madison to deliver the commission, and Jefferson told Madison to ignore it, the Court's weakness would be exposed to the world. If it declined to decide, it would look like a surrender. Marshall had to find a path between humiliation and capitulation.

Marshall's three questions

His opinion, delivered on February 24, 1803, is organized with great care around three questions. They are worth setting out in order, because the structure is the argument.

One: does Marbury have a right to the commission? Marshall said yes. The appointment was complete once the President signed the commission and the seal was affixed. The delivery was a ministerial act, a mere formality that the Secretary of State had no discretion to withhold. Marbury held a legal right, and withholding the commission violated it.

Two: if he has a right, and it has been violated, do the laws of the country afford him a remedy? Marshall said yes again, and here he wrote some of the most quoted lines in American law: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right."

Notice what he did. Up to this point, he had decided every question against the President. Jefferson's administration had acted unlawfully, and the law gave the injured party a remedy. Jefferson's party could not have liked a word of it.

Three: is the remedy a mandamus from this Court? This was the hinge. Marbury had come directly to the Supreme Court, asking it to exercise what lawyers call original jurisdiction, jurisdiction to hear a case in the first instance without an earlier trial in a lower court. He relied on Section 13 of the Judiciary Act of 1789, which authorized the Supreme Court to issue writs of mandamus "to any courts appointed, or persons holding office, under the authority of the United States."

Marshall read Article III, Section 2 and found a problem. That section lists the cases in which the Supreme Court has original jurisdiction: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction." A suit by Marbury against the Secretary of State was neither of the listed kinds. Section 13, by authorizing the Court to issue such writs in original proceedings, added to the Court's original jurisdiction beyond what the Constitution allowed.

So there were two laws, in conflict: the Judiciary Act, giving the Court power to hear Marbury's case, and the Constitution, which did not. Which controls?

The turn

Here Marshall made the move for which the case is remembered. Courts, he said, decide cases according to law, and when two laws conflict, the court must decide which governs. If the Constitution and a statute conflict, the Constitution, as the superior law, must prevail. "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

From there came the sentence that every law student memorizes: "It is emphatically the province and duty of the judicial department to say what the law is."

Section 13, to the extent that it purported to expand the Court's original jurisdiction, was therefore void, and the Court had no power to issue the writ. Marbury lost. He never got his commission, and Madison did not have to deliver it. As to the outcome, Jefferson won.

Why this is a lesson in restraint

Consider what Marshall did and did not do.

1. He declined a power Congress had offered him. Section 13 invited the Court to hear a politically explosive case directly. Marshall said no, holding that the Constitution did not allow it. An institution seeking to expand its own reach does not turn down a grant of jurisdiction.
2. He exercised the power of review on a statute that enlarged the Court's own authority. In Marbury the Court struck down a section of an Act of Congress for the first time, and it was a section that gave the Court more power. It is difficult to imagine a better demonstration of good faith.
3. He avoided a confrontation he could not win. An order to Madison would have been defied or ignored, and the Court would have been shown to be impotent, which is what Hamilton had meant in Federalist 78 by calling the judiciary the weakest branch. By ruling that the Court lacked power to issue the order, Marshall avoided putting it to the test.
4. He established the principle without anyone having to obey a command. The Jefferson administration could not defy a ruling that required it to do nothing. The Court told them they had acted unlawfully, and in the same breath told them they had won.

The brilliance is in the sequence: the rebuke came first, the loss second, the principle third. By the time Jefferson's party recognized what had happened, the principle was announced and the case was over. In the same term, in Stuart v. Laird (1803), the Court rejected challenges to the 1802 reorganization of the lower courts, including the practice of Justices riding circuit, a decision that confirmed Congress's power to rearrange the lower courts and showed the Court was not looking for a war.

What judicial review means and what it does not

This is the point on which conservatives should be most careful, because the case is often cited for more than it holds.

Marbury establishes that a court deciding a case must apply the Constitution when it conflicts with a statute, and cannot apply the statute. That is the duty of judicial review: a duty to apply the higher law. Marshall's reasoning rests on the written Constitution and the judge's oath, and on the necessity of choosing between conflicting laws in the case at hand.

Marbury does not establish, and Marshall did not claim, that the Court's interpretation of the Constitution is binding on the other branches whenever they act within their own powers, or that the Court may rule the country by decree. A duty to apply the higher law in a case is narrower than a power to rule on every question. Marshall himself wrote in the same opinion that where department heads act as the President's will on matters of executive discretion, their acts are "only politically examinable" and not subject to judicial control. The Court's role is to decide cases and controversies, which is a role the Constitution itself sets out in Article III.

The difference between judicial review and judicial supremacy is the distinction that Lincoln drew when he responded to Dred Scott, and the one a good conservative should defend. For that argument see Judicial Review Is in the Constitution's Logic, and Judicial Supremacy Is Not and Dred Scott Is the Warning Every Fan of Judicial Supremacy Should Read. Marshall's own model of the judge, in Marbury, is an officer bound by the text. That is the standard behind the claim in Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.

The strongest objection

Jefferson's side of the argument deserves a fair statement. He later wrote that to give the judges the right to decide what laws are constitutional, for the other branches as well as for themselves, would make the Constitution "a mere thing of wax" in the hands of the judiciary. Each branch, he held, must interpret the Constitution for itself within its own sphere, since all three take the oath.

There is real force there, and a fair reading of Marbury gives Jefferson most of what he wanted on the point that matters. Marshall did not say the Court's reading binds the President when the President acts within executive discretion. He said the Court must apply the Constitution in the case before it. The President, Congress and the Court each answer to the same text, and when they disagree the arguments are political as well as legal, resolved by elections, by appointments, by Article V and by the slow work of persuasion. Marshall's genius was to claim a limited power that his adversaries could not easily dispute, not an unlimited one they would have resisted.

Another objection says the case shows judicial self-dealing: the Court awarded itself the review power. But the logic of review does not come from the Court's wish. It comes from the Constitution's structure, which makes itself the supreme law in Article VI, and from the oath of every judge, in the same article, to support it. Hamilton had argued as much in Federalist 78 in 1788, fifteen years earlier, and the Court was applying an idea that had been public from the ratification debates on.

The conflict of interest and the lesson in humility

A fair account should not stop at praise. Marshall should probably have recused himself, since he had signed the commissions and his office had left them undelivered. The case is a lesson in what happens when an institution is pushed into a political corner: it can act with great cleverness and still be tainted by process. There is a comic edge to the fact that the man who taught the country that no one may be a judge in his own cause did not step aside from his own. A conservative defender of the rule of law should say so plainly, and not defend the founder of judicial review at the expense of the principle he established.

The case in brief

1. After losing the 1800 election, the Federalists created new judgeships and justices of the peace, and William Marbury's commission was signed but not delivered when Jefferson took office.
2. Congress repealed the 1801 Judiciary Act in 1802 and canceled the Court's 1802 term, so the Court heard Marbury's petition in February 1803 under real political pressure.
3. Marshall answered three questions: Marbury had a right, the law gave him a remedy, but a mandamus from the Supreme Court was not available because Section 13 of the Judiciary Act enlarged the Court's original jurisdiction beyond Article III.
4. By refusing a power Congress had offered, Marshall established that courts must apply the Constitution over conflicting statutes, a duty of review narrower than a power to rule the country.
5. The case teaches restraint: judicial review is a duty to apply the higher law in the case at hand, and it comes with the oath, not with supremacy.

What you can do: read Article III, Section 2 and then Section 13 of the Judiciary Act of 1789 on Congress.gov, and see for yourself where Marshall found the conflict.