Marbury v. Madison and the Power the Supreme Court Gave Itself in 1803

The most powerful idea in American constitutional law came out of a fight over a piece of paper that never got delivered. No war, no riot, no great principle at stake in the minds of the parties. A man wanted a small government job, the President who had signed his commission had left office, and the new administration decided not to hand it over. That is the whole case. And out of that dispute the Chief Justice of the United States wrote an opinion that, depending on who you ask, either saved the Constitution or handed nine lawyers a crown.

Let me tell you the story of Marbury v. Madison, because you cannot argue about judges in America without it. Every time somebody says a court "struck down" a law, they are leaning on a power that appears nowhere in the Constitution in so many words. Every time an administration says a judge has no business blocking its policy, it is arguing with a decision from 1803. I want you to see how the power was claimed, whether it was a smart claim, and what conservatives, who say they want judges to follow the text, should make of a power the text never spells out.

The setup: an election, a lame duck and a lot of commissions

The election of 1800 was a rough one. John Adams, the Federalist President, lost to Thomas Jefferson, a Democratic-Republican. The Federalists still controlled the government until March 4, 1801, and they used the time. In February 1801 Congress passed the Judiciary Act of 1801, which reorganized the federal courts, created new circuit judgeships, and cut the size of the Supreme Court for the next vacancy. Adams filled the new seats with Federalists, and the appointments came to be called the "midnight judges," because the story goes that he was signing commissions late into his final night in office. Congress also passed a law creating justices of the peace for the District of Columbia, and Adams nominated people to those posts. The Senate confirmed them on March 3, 1801.

One of those nominees was William Marbury, a Maryland businessman and Federalist. His commission was signed and sealed, but it was never delivered. The man in charge of delivering commissions was the Secretary of State, who happened to be John Marshall. Marshall had also been named Chief Justice weeks earlier, and he was serving in both jobs at once. In the rush, some commissions went out and some did not.

When Jefferson took office, his new Secretary of State, James Madison, found the undelivered commissions and, at Jefferson's direction, withheld them. Marbury and several others sued. They filed their case directly in the Supreme Court, asking it to order Madison, by a writ of mandamus (a court order commanding an official to do a duty), to deliver the commissions.

The trap Marshall was in

Think about Marshall's position. He was a Federalist, appointed by Adams. He had, in a sense, helped create the problem as Secretary of State. And the new President was an open enemy of the Federalist judiciary. If Marshall ordered Madison to deliver the commission, the Jefferson administration could simply refuse, and the Court had no army and no police to enforce its order. Hamilton had written in Federalist 78 that the judiciary has "neither force nor will, but merely judgment," and that it depends on the other branches to carry out its rulings. A defied order would show the Court to be a paper tiger. But if Marshall ruled for Madison without saying anything, he would look like he had been cowed.

So he did something very clever. He found a way to scold the Jefferson administration, say that Marbury was right, and still lose the case. And in the process he claimed a power for the Court that was far bigger than the commission.

The opinion in three questions

Marshall organized his opinion around three questions.

1. Does Marbury have a right to the commission? Yes. Once the President signed it and the Secretary of State sealed it, the appointment was complete, and Madison's withholding it was a violation of a legal right. Marshall wrote that the government of the United States had been called a government of laws, and not of men, and that it would cease to deserve that name if the law gave no remedy for the violation of a vested right.
2. If so, does the law give Marbury a remedy? Yes. A court can order an official to perform a duty the law imposes on him that involves no discretion.
3. Can the Supreme Court issue that remedy in this case? Here is where Marshall pulled the trick. Marbury had come to the Supreme Court directly, relying on Section 13 of the Judiciary Act of 1789, which Marshall read as authorizing the Court to issue writs of mandamus to federal officers. But Article III, Section 2 of the Constitution lists the cases the Supreme Court may hear in the first instance, its "original jurisdiction": cases affecting ambassadors, other public ministers and consuls, and those in which a state is a party. Everything else, the Constitution says, comes by appeal. A suit by a private citizen against the Secretary of State is not on that list.

So there was a conflict. Section 13, read Marshall's way, gave the Court a power the Constitution had not given it. Which one wins?

The reasoning that made history

Marshall answered with logic that a first-year law student can follow. The Constitution is the fundamental law of the nation. It limits the powers of Congress. If Congress could ignore those limits simply by passing a statute, then the written Constitution would be pointless. He wrote that an act of the legislature repugnant to the Constitution is void. He then asked who decides when a law and the Constitution conflict, and answered: "It is emphatically the province and duty of the judicial department to say what the law is." When two laws conflict, courts must decide which governs, and the Constitution outranks an ordinary statute.

He added textual supports. Article VI, the Supremacy Clause, says the Constitution and the laws "made in pursuance thereof" are the supreme law of the land; a statute that does not comply with the Constitution is not made in pursuance of it. Judges also swear an oath to support the Constitution, and he asked how they could honor it if they had to apply laws that violated it. The result: Section 13, as Marshall read it, was unconstitutional, so Marbury lost.

Three points in that reasoning are worth marking.

First, the claim is modest on its face. Marshall did not say the Court is the supreme interpreter of the Constitution for every branch. He said that in deciding a case, a court cannot apply a law that conflicts with the Constitution. That is the core of judicial review.

Second, it was not entirely new. The idea had precedents in the states: courts in Virginia, Rhode Island and North Carolina in the 1780s had refused to enforce laws they believed violated state constitutions. Hamilton had laid out the argument in Federalist 78, calling the interpretation of laws "the proper and peculiar province of the courts" and describing the Constitution as a fundamental law the judges must regard as superior to ordinary statutes.

Third, the way Marshall reached the result was awfully convenient. He gave up a small power the Court did not need, jurisdiction to hand Marbury a commission, to claim a huge one. And he took on Jefferson without forcing Jefferson to defy any order. Jefferson got the result he wanted and could hardly complain. Even legal scholars who admire the outcome have pointed out that Marshall read Section 13 more broadly than he had to, and that he could have read it more narrowly to avoid the constitutional question altogether.

What the Court did next, and what it did not do

If you imagine that Marshall's opinion unleashed a flood of courts striking down laws, you'd be mistaken. The Court did not strike down another act of Congress until Dred Scott v. Sandford in 1857, when Chief Justice Roger Taney's opinion held the Missouri Compromise's ban on slavery in the territories unconstitutional. That is fifty-four years. (1857 minus 1803 equals 54.) Think about that. The first big exercise of the power after Marbury was one of the worst decisions in the Court's history, and it helped push the country toward civil war. Conservatives who admire judicial restraint do not need to look far for an argument that the power can go wrong.

The Court did use the power against state laws in the meantime, notably in Fletcher v. Peck in 1810, which struck down a Georgia statute. That was a more routine use of the Supremacy Clause.

Marshall's caution was not an accident. Days after Marbury, in Stuart v. Laird, the Court upheld the Jefferson-era repeal of the Judiciary Act of 1801, which had abolished the new circuit judgeships, in effect letting the political branches have their way on a question where the Federalists' position was arguably the stronger one. Marshall picked his fights. The great Chief Justice understood that a court that picks too many fights with the elected branches will lose the one that matters.

The strongest objection: "That is not what the Constitution says"

Let me state the case against Marbury at full strength, because conservatives have made it. Article III vests "the judicial Power" in the courts, and the text does not say that power includes striking down acts of Congress. Jefferson himself thought each branch had equal authority to interpret the Constitution, so the President could refuse to enforce a law he thought unconstitutional, and Congress could do likewise. And Abraham Lincoln, in his first inaugural address in 1861, took a similar view of Dred Scott, accepting that the decision bound the parties to the case but denying that it settled the policy of the nation for everyone else. If the Supreme Court can never be corrected by the other branches, the critics say, the people have exchanged a king for nine unelected lawyers.

That is a serious argument. Here is how I'd answer it, in four points.

1. The power is a consequence of the written Constitution, not an addition to it. If the document is law, and judges decide cases under the law, they have to apply the Constitution when a statute conflicts with it. Hamilton made the argument before Marshall did.
2. It is a power over cases, not over policy. A court can decline to apply a law in the case before it. It cannot write a new statute, raise taxes or command an army. The remedies for a bad ruling remain: Congress can pass new laws, the President and Senate can appoint different judges, and the people can amend the Constitution through Article V, as they did to overturn Dred Scott with the 14th Amendment and to reverse a decision about the income tax with the 16th. For how that process works, see Article V Explained, and the Amendment That Took More Than 200 Years.
3. Nothing in Marbury requires "judicial supremacy" in the strong sense. A century and a half later, in Cooper v. Aaron in 1958, the Court said its interpretations of the Constitution are the supreme law of the land, and that is a much bigger claim than Marshall's. Edwin Meese, the Attorney General under President Reagan, argued in a 1986 speech that a Supreme Court decision binds the parties in the case but is not the same thing as the Constitution itself. You can agree or disagree, but notice that the sharp conservative critique is aimed at overreach, not at the basic power.
4. The alternative is worse. If no one can hold Congress and the President to the text, the text is only advice. A conservative who wants the Constitution enforced against a runaway government needs a court that can say no.

What this means for the arguments you hear today

When a President, of any party, is blocked by a judge and says the judge has no right to interfere, you now know the legal ground. The judge has the power to decide the case in front of him and to refuse to apply a law or policy that conflicts with the Constitution or with a valid statute. The President has options: appeal, which is the normal path, ask Congress for a new law, or challenge the ruling on the merits. What he does not have is the right to ignore the order. In Justice Jackson's Three-Box Test for Presidential Power, Put to Work you can see how courts weigh a President's claim of power, and in One Judge, One Injunction, One Country, and How Federal Courts Block Policy you can see how a single district judge's order can reach so far.

Conservatives should also notice what Marshall did not do: he did not use the power to impose a policy of his own. His genius was restraint. A Court that keeps to cases, rests on text and picks its fights is a Court that conservatives can defend. A Court that sees itself as the nation's super-legislature is not. The difference is the heart of our case for choosing judges who follow the law, as we explain in Originalism Explained for People Who Skipped Law School, and it flows from the same design Madison drew, described in Madison Built a Government Where Ambition Fights Ambition, and It Works.

The bottom line

• Judicial review, the power to refuse to apply a law that violates the Constitution, is not spelled out in the text. John Marshall claimed it in 1803 by reasoning from the written Constitution, Article III and the Supremacy Clause, and Hamilton had made the same argument in Federalist 78.
• Marshall used the power cautiously: he declined jurisdiction he thought the Constitution denied him, and the Court did not strike down another federal law until Dred Scott, 54 years later.
• The power is a check on Congress and the President, and the people have checks on the Court: appointments, new legislation and the amendment process.
• Know the difference between a judge deciding a case and a judge making policy. Defend the first and challenge the second, with arguments from the text.
• When you hear that a court "overstepped," ask which law or clause it applied, and read the opinion. Most of the time the answer will tell you whether the complaint is about the law or about the result.