Tuesday, May 5, 2009

Supreme Court 3: The Marshall Court

It is emphatically the province and duty of the judicial department to say what the law is.

That is one of the most quoted sentences from any U.S. Supreme Court opinion in American history. The case was Marbury v. Madison, decided in 1803, early in John Marshall's long tenure as chief justice. That decision established a power that is not explicitly given to the court by the Constitution, that of judicial review, i.e., the power to decide whether a statute is void because it's incompatible with the Constitution.

The circumstances of the case were similar to those of Marshall's own appointment to the Supreme Court. As was the case with Marshall, William Marbury was appointed to federal office in 1801 by the lame-duck President John Adams of the Federalist Party. The difference was that, in Marbury's case, the subsequent Republican administration, specifically Secretary of State James Madison, refused to follow through and implement Marbury's appointment by issuing him a formal commission.

Marbury was appointed a justice of the peace in the District of Columbia. That was one of several judicial offices that were created by an act of the Federalist-controlled Congress, after they lost the 1800 election. Madison's boss, President Thomas Jefferson, ordered Madison not to deliver commissions to the so-called "midnight judges", because Jefferson deemed the creation of those office by his political opponents to be illegitimate.

Marbury followed the procedure that the Congress had established in the Judiciary Act of 1789, which was to ask the Supreme Court to order Madison to deliver the commission. But that court, in its Marbury decision, ruled that it did not have that power, because Congress had contradicted the Constitution by establishing such a procedure.

Article III of the Constitution includes the following parameters regarding the Supreme Court's 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.

The Court found that the section of the Judiciary Act in question, attempted to give the Court original (as opposed to appellate) jurisdiction in an area that was outside of those constitutional parameters. Therefore, they declared that part of the Act to be unconstitutional, the first time the Supreme Court had done so in relation to any act of Congress.

There's nothing in Article III that explicitly says the Supreme Court can invalidate a law passed by Congress. But Marshall argued that it "is of the very essence of judicial duty" for a court to resolve a conflict between two laws. And, if the Constitution is to have any meaning, a conflict between a congressional statute and the Constitution must be resolved in favor of the latter.

Thus was judicial review born.

After Marshall established the place of the judicial branch in relation to the other branches of the federal government, he went on to map out federal authority vis-à-vis that of the states. More about that coming up but, first, some thoughts about Supreme Court decisions and partisan politics.

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