The Making of a Judicial Giant

It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each….This is of the very essence of judicial duty.
                Chief Justice John Marshall, Marbury v. Madison, 1803

From time to time, the Supreme Court has been the subject of one of my articles.  I love the Supreme Court and am endlessly fascinated with the issues they discuss.  Within the story of the Supreme Court, I’m most intrigued with the career of John Marshall.  He was the third chief justice of the Court and widely considered the most important judicial figure in the history of the United States.  He is responsible for the creation of the modern court and its powers.  However, like most things dealing with the law, one’s career is often centered on a single case.  For John Marshall, that case was Marbury v. Madison in 1803.

In the waning days of the Adams administration, having been defeated by the Democratic-Republican Thomas Jefferson, the Federalist president hurriedly worked to fill a slew of vacant federal judicial positions.  President Adams had been negligent to do so earlier but worked overnight to complete them before leaving the White House for good.  He stacked his pile of “midnight judges” appointees on his desk and assumed that the incoming president of a different party would finish the process.  Upon entering the White House, President Jefferson and his Secretary of State, James Madison, saw the appointees and pondered.  Are they required to fulfill these Federalist positions?  They answered no and likely threw them away. 

One of the judges in question, William Marbury, wanted his post – justice of the peace of Washington, D.C.  At the time, the capital was a sleepy agricultural community with little for a justice of the peace to worry about.  He sued the government and Secretary Madison for his job on the basis of the Judiciary Act of 1789.  In particular, he called for a writ of mandamus – an order for the government to do its job.  For Chief Justice Marshall, the strident Federalist who wants and needs a stronger government for the good of the Court, his sympathies are towards Marbury but he has a problem.  With the little respect or prestige of the Court, if he ruled in favor of Marbury and ordered the president to appoint him, President Jefferson would simply ignore him.  However, in reviewing the law, he sees a chance to gain some much needed credibility for the Supreme Court. 

As John Marshall laid out his ruling, he began by saying that Marbury was appropriately appointed and should be given his position.  Nothing in the Constitution limits when a president can make judicial appointments and therefore, the post should go to Marbury.  As the audience begins to think that the Federalist judge has ruled in favor of the Federalist plaintiff, Marshall shocks by attacking the Judiciary Act of 1789.  In short, Marshall ruled that the portion of the law used by the plaintiff was unconstitutional and therefore, Marbury’s case and basis was invalid and his petition denied.  Jefferson was now in a bind.  If he did not accept Marshall’s opinion, he would be compelled to give Marbury his position, with many other midnight judges likely to follow the same path.  By accepting the Court’s opinion, he bestows upon the Court the ability to review the actions of government and determine its constitutionality.  In short, John Marshall took one step back to take two steps forward at a later date.  It worked and the Court was given an important power over the other branches – judicial review.   

The Supreme Court has the authority to review not only the actions of the government but those of the lower courts, both federal and state.  Over the course of his career, Marshall’s decisions would establish a strong federal government in the areas of interstate commerce, international contracts and on the question of federal law superseding state law.  Given the impact that he had, it is surprising that he is not more well-known.  Hopefully, I’ve changed that to some degree with this little story.  His life and his work is worthy of attention and study.