Judicial Review

A commission that never arrived

President John Adams signed a commission making William Marbury a justice of the peace for the county of Washington. The seal of the United States went on it. It never reached him. Marbury went to the Supreme Court and asked for a writ of mandamus ordering James Madison, the Secretary of State, to hand it over. The Court told Marbury the commission was his by right, then refused to order anyone to deliver it.

How does a fight over an undelivered piece of paper become the source of the judiciary’s authority over Congress? The answer is in the order Chief Justice Marshall took the questions, and in what he had to establish before he could say no. The activity has you rebuild that argument as a numbered chain of premises and go after the weakest link. This reading is the ground you need to tell a premise Marshall actually argued from one that two centuries of retelling supplied.

The three questions

Marshall set out three, in this order. Has the applicant a right to the commission he demands? If he has a right, and that right has been violated, do the laws of his country afford him a remedy? If they do afford a remedy, is it a mandamus issuing from this court? Yes, yes, and no.

The no is where judicial review enters. The Judiciary Act of 1789 authorized the Supreme Court to issue writs of mandamus to persons holding office under the United States, and Madison was plainly such a person. But Article III (opens in a new tab) gives the Court original jurisdiction over a short list: cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. Everything else reaches the Court on appeal. Congress had handed the Court a power the Constitution withheld from it.

Marshall could have read the statute narrowly and avoided the collision. He read it straight instead, and then asked what a court does when a statute and the Constitution cannot both be obeyed. Two premises carry the answer, and you can check them in the opinion (opens in a new tab). A written constitution is superior, paramount law, or else writing it down accomplished nothing. And if that is so, then “a legislative act contrary to the constitution is not law.” A judge holding two rules that conflict has to decide which one governs the case, so the judge has to decide the constitutional question.

Hamilton had made a version of this argument fifteen years earlier in Federalist No. 78 (opens in a new tab). Where a statute and the Constitution conflict, he wrote, judges must prefer the Constitution, because it carries what the people decided and the statute only what their representatives decided. Then he added a qualification worth holding onto: preferring the Constitution supposes no superiority of the judicial power over the legislative. The last section of this reading is about what that qualification gave away, and to whom.

Marbury v. Madison is studied as strategy because of what the ruling cost. Marshall handed the executive nothing to defy, since the Court ordered no one to do anything. What the Court took in exchange was the authority to measure an act of Congress against the Constitution, and the party that won the case was in no position to complain about it.

Courts decide cases, not questions

Article III extends the judicial power to cases and controversies. Those two words are a fence. The doctrines running along it, grouped as justiciability, decide whether a court may hear a dispute at all, before it decides anything else about it.

Standing is the main gate. Lujan v. Defenders of Wildlife lists three elements. The plaintiff needs an injury in fact that is concrete and either actual or imminent. The injury has to trace to the conduct complained of, and a court has to be able to redress it. Two members of the plaintiff organization had traveled to Egypt and to Sri Lanka to observe endangered animals, and each swore she intended to go back. The Court held that was not enough. Such “some day” intentions, with no concrete plans and no date, do not establish an injury that is actual or imminent.

Ripeness asks the same question early, since a dispute that has not yet matured is not a case. Mootness asks it late, since a dispute that has ended is not one either. Jurisdiction also comes first in sequence. In Steel Co. v. Citizens for a Better Environment the Court refused to let judges assume jurisdiction in order to reach an easier merits question. A court that pronounces on the law without authority to hear the case acts outside its power.

Notice what this costs. A statute can be unconstitutional and go unreviewed for years, because nobody who can show a concrete, redressable injury has sued. Judicial review is no roving license to correct the other branches. It arrives attached to somebody’s lawsuit, and it stops when the lawsuit stops.

Marbury himself had no standing problem. A commission withheld is an injury a court can name, trace, and redress. What defeated him was the Court’s own jurisdiction, which is Article III doing both jobs in a single case.

Who is bound by what the Court says

Marbury settled that a court may refuse to enforce an unconstitutional statute in the case in front of it. It did not settle the harder question. When the Court reads the Constitution, who else has to accept the reading?

Judicial supremacy answers everyone, and its clearest statement came out of Little Rock. The Governor and Legislature of Arkansas acted on the premise that they were not bound by Brown v. Board of Education. In Cooper v. Aaron (opens in a new tab) all nine justices signed the opinion by name, one after another at its head. They traced the principle to Marbury and stated it flatly: the federal judiciary is “supreme in the exposition of the law of the Constitution.” The Court’s reading of the Fourteenth Amendment in Brown was therefore the supreme law of the land, and Article VI made it binding on the states.

United States v. Nixon (opens in a new tab) pressed the same claim against a President. Served with a subpoena for tape recordings and documents, he asserted an absolute privilege over his confidential communications. The Court, with one justice not participating, held that a generalized interest in confidentiality gives way when a pending criminal trial needs specific evidence. It ordered the material sent to the district judge for review in chambers.

Departmentalism gives a narrower answer, and it is not a fringe one. Kevin Walsh’s essay on judicial departmentalism (opens in a new tab) draws the line this way. The Constitution means in the judicial department what the Court says it means in deciding a case. Judicial supremacy claims it means that for everybody. On the departmentalist account a judgment binds the parties to it, and a President or a governor still owes a duty to the Constitution rather than to the Court’s account of it. Robert Post and Reva Siegel write from the other side of that argument (opens in a new tab), defending a larger role for judicial review than the critics of supremacy allow.

You now have both positions and the cases that built them. Which one you find more convincing is what your post has to work out. Each reading gives up something the other keeps.

What to test when you get there

The activity opens with the Case Reasoning Tutor on Marbury, then hands the same opinion to the Marbury Logic Auditor to be broken into numbered premises. Run both. Then open the opinion and walk the chain line by line.

Expect a cleaned-up Marbury. Two centuries of casebooks have tightened Marshall’s reasoning into a syllogism he never quite wrote, and a model trained on those casebooks will give you the tidy version with confidence. Watch the premises that sound like logic and are really assertions. Two of them carry most of the weight: that a written constitution must be supreme, and that judges rather than legislators decide what it means. Marshall argued for some of these. Others he assumed, and his readers let him.

That is the habit this activity trains. Ask where a premise came from, and go look.