Revisiting Marbury v. Madison

The Law Center celebrated the bicentennial of Marbury v. Madison – the 1803 Supreme Court decision that established judicial review of legislative and executive acts – by holding a day-long symposium on this landmark case and a lively reenact-ment of the oral argument.

     Presenting papers at the February 14 anniversary, organized by Professor Mark Tushnet, were several constitutional scholars, including Barry Friedman of NYU, Stephen Griffin of Tulane University, and Suzanna Sherry of Vanderbilt University. Respondents included Law Center Professors Mike Seidman, Vicki Jackson, and other faculty. The Hon. Harry Edwards and the Hon. David Sentelle, both of the U.S. Court of Appeals for the District of Columbia, and the Hon. Sonia Sotomayor and the Hon. Robert Katzmann, both of the U.S. Court of Appeals for the Second Circuit, served as judges in the reenactment. Professor David Strauss of the University of Chicago Law School argued in the role of Secretary of State James Madison’s attorneys and Tushnet in that of Marbury’s.
     The historical case concerned whether the Supreme Court should issue a writ of mandamus ordering that the new president, the Republican Thomas Jefferson, deliver a commission of justice of the peace of the District of Columbia to William Marbury, who had been appointed by the oppositional Federalist party when it held the White House under John Adams in the previous administration. In an attempt to capture the judiciary (in addition to the legislature and executive that it already controlled), Jefferson’s Republican administration repealed the Judiciary Act of 1800, which had established new judgeships including Marbury’s.
     Supreme Court Chief Justice John Marshall (who, as secretary of state under President Adams, had first signed Marbury’s commission), was concerned with preventing the weakening of the judicial branch of government that would have occurred if the Court issued such a mandamus – a mandamus that likely would have been ignored by an ambitious executive administration. Marshall ruled that Madison should have awarded the commission to Marbury but that issuing such writs of mandamus under the Judiciary Act of 1789 exceeded the Court’s authority under Article 3 of the Constitution. Accordingly, by declaring the 1789 Act null and void, Marshall enhanced the status of the Court inasmuch as it now had the power to declare both executive and legislative acts unconstitutional and, by doing so, had final authority to interpret the Constitution.
     This power of judicial review, a subject of scholarly debate ever since, was examined extensively at the symposium. Griffin, reviewing 20^th-century scholarship, advocated a “theory of judicial review based on democratic but not majoritarian norms.” Arguing that we now live in a “democracy of rights,” Griffin said: “It is no longer possible for the Supreme Court to achieve the independence from politics required to maintain a consistent posture with respect to the protection of individual rights.”

He concluded that its appointees, like those elected to legislative and executive bodies, should be representative of political coalitions according to current rather than 18^th-century ideas of democracy.
     In rebuttal, Law Center Professor Vicki Jackson suggested that the nation is no longer in an era of a “democracy of rights” but in a period when the Court is taking rights away. If one conceives of the Court in “old-fashioned terms, as one designed to protect the rights of individuals,” she added, “then the new turn this Court has taken is, I think, powerfully troubling.” She noted that the current judicial era is not necessarily discontinuous with that of Marshall and that therefore one “might want to think about courts as enforcers of normative principles” rather than political ones.
     Seidman countered Griffin by positing two sorts of constitutional theorists: those who attempt to shape the Constitution in accordance with their political preferences, and those who compromise their preferences in the name of a positive constitutional form. Like Justice Marshall, Griffin was, Seidman suggested, attempting an “authoritarian straddle,” where one “claims that she is defending existing constitutional arrangements when she is actually creating them according to her political preferences.” In Marbury, Seidman argued, “Marshall pretends that his substantive preferences are uncontroversial and that he is steering clear of political questions.”
     The reenactment of the oral argument focused on the question of the Supreme Court’s jurisdiction. In one of the first of many lively exchanges between counsel and the bench, Judge Katzmann asked Tushnet (on behalf of Marbury), “Why didn’t you file this case in the Circuit Court of the District of Columbia which was in existence and has mandamus authority?”
      In response, Tushnet enumerated four powers that the Supreme Court had under Section 13 of the Judiciary Act of 1789. He argued: 1) that it did indeed have original rather than appellate jurisdiction in some cases; 2) that though it had some original jurisdiction, that jurisdiction was not the only federal court original jurisdiction; 3) that it did indeed have appellate jurisdiction; and 4) that there is a sentence in the Section referring to the Court’s powers of issuing writs of mandamus.

Professor Seidman posited two sorts of constitutional theorists: those who attempt to shape the Constitution in accordance with their political preferences, and those who compromise their preferences in the name of a positive constitutional form.

       Judge Sotomayor countered that Article 3, Section 2 of the Constitution voided Section 13 of the 1789 Act by limiting the Court’s power to issue writs of mandamus to ambassadors, public ministers, and the states and that “anybody else should be subject to appellate jurisdiction only.” Tushnet replied with an expansive definition of the “exceptions clause,” in Article 3, saying that the Congress had the power to transfer federal cases from the Court’s appellate to its original jurisdiction. Katzmann retorted that such a transfer would “potentially swamp the most important court in the country with original jurisdiction.” Then Sotomayor, tacitly recalling Chief Justice Marshall’s concern about issuing a mandamus and having it ignored by President Madison, asked, “How do we enforce our own order?”
     Professor Strauss, faithful to his role as the attorney for Madison, began his argument on behalf of the new president by asking that Justice Marshall recuse himself because of his interest as the person who signed Marbury’s commission in the first place – a request that was promptly denied. Next, Strauss challenged on a jurisdictional basis not only the Court’s power to issue the mandamus but its power to finally interpret the Constitution. “The question is whether the Constitution permits the Court to substitute its judgment about the constitutionality of a statute,” he said.
     Judge Katzmann answered, “we certainly do have the authority under the Constitution to take any cases within our power, and properly brought to us, as cases under the Constitution and to issue a judgment on its [sic] constitutionality.” Strauss presented an argument that this power was restricted to appellate cases and that “another branch’s judgment of constitutionality is entitled to deference.” The reenactment, accordingly, highlighted many of the delicate questions that Justice Marshall faced in his era. Also clear was the continuing relevance that those constitutional problems hold today for judges, legal scholars, and advocates before the highest court in the land.