Sweet Irony—Conservative High Court Coup Enshrined Judicial Activism

The main dramatis personae of the 1801 Marbury v Madison case--Brand new Federalist Chief Justice and frormer Secretary to State for John Adams, John Marshall and his fellow Virginian and long-time political enemy Democratic Republican President Thomas Jefferson

On February 24, 1802 Chief Justice John Marshall handed President Thomas Jefferson a narrow political victory by asserting a power that Jefferson was convinced the Court did not have in the case of Marbury v. Madison.  

The details of the case were as convoluted and tiresome as Marshall’s hair-splitting decision.  Those of you who have not been tortured in first year Constitutional law will undoubtedly find it confusing. 

The case had its origins with John Adams’ famous “Midnight appointments” of judges aimed at packing the Federal bench with avowed Federalists before Jefferson and the new Democratic-Republican Congress could do anything about it.  The new Circuit Court judges and Federal justices of the peace appointed needed receipt of an official commission from the Secretary of State before taking office.  

Outgoing President John Adams precipitated the crisis by spending his last hour in office furiously making out  judicial appointments--the so-called Midnight Judges and the churlishly left town before his bitter enemy Jefferson's inauguration--the only sitting president ever to boycott the swearing in of his successo

John Marshall had been Adams’ Secretary of State before accepting appointment as Chief Justice and was still acting in that position in lieu of a new appointment.  He rushed as many certificates as possible to the new officers of the court, but he could not finish the job.  He left it to the incoming Secretary, James Madison to routinely process the rest of the documents.  But Jefferson believed that the unfulfilled appointments had expired with the Adams administration and directed that no action be taken on them.  

William Marbury, a prominent Maryland businessman and staunch Federalist did not receive his credentials as Justice of the Peace for the District of Columbia and, believing the job his legal due, sued Secretary of State Madison to compel him to issue his commission.  Meanwhile the new Congress overturned the Judiciary Act of 1801 under which Adams had acted and largely re-instated the previous Judiciary Act of 1789.  

The official litigants--Federalist judge wanna-be William Marbury and Jefferson's Secretary of State James Madison.

Marshall, now Chief Justice, did not recuse himself from hearing the case despite his personal involvement in the appointments. Instead the Federalist and sworn political enemy of Jefferson wrote the opinion in the case.  It was a doozy.  

First, he held that Marbury had a right to receive a legal appointment and suffered an injury for which there must be a judicial remedy.  So far it looked like Marshall was going to affirm the case and the old President’s authority to make the appointments.  

But then Marshall answered an unasked question:  did the Supreme Court have the authority to provide Marbury the remedy he sought through a writ of mandamus?  After examining the Article III of the Constitution which sets forth the power of the Supreme Court and the Judiciary Act of 1789, Marshall concluded that the Court does not have original jurisdiction over writs of mandamus and therefore had no power to issue an order.  Score one for Jefferson who did not want to seat the judges.  

Then Marshall threw his best curve ball.  He declared that Section 13 of the Judiciary Act, which seemed to allow the court to take original jurisdiction, was at odds with the Constitution and therefore “unconstitutional and invalid.”  

A cartoon that sums up what Marshall did.

The results:  Marbury didn’t get his job, Jefferson wasn’t stuck with judges he didn’t want, and the Court had boldly asserted co-equal power with the Executive and Legislative branches of government and indeed had the power to overturn actions by either or both of the others when those actions were unconstitutional. 

The expansion of judicial power appalled and frightened Jefferson who believed that moneyed interests would always control the Court and stymie democracy.  

Thus began the judicial activism which modern Conservatives so abhor—except when that activism advances their own ideology.  

Lawyers, law students, and pettifoggers among my readers are invited to tear my summery of the case to pieces.  I’m sure they will be right.