The Activist

by Lawrence Goldstone

  In prose that could have just as easily come from Ionesco, Marshall expounded on his reasoning. “When an instrument organizing fundamentally a judicial system, divides it into one supreme and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction and for adhering to their obvious meaning.”

  Of course, another clause did render the clause inoperative—Marshall simply chose to ignore it. Based on this utterly false premise, Marshall was able to conclude, “To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.”

  Marshall’s conclusion was hardly surprising. “The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution,” he wrote. From here, a simple leap—if anything the chief justice wrote could be described as “simple”—took Marshall to the undisputed assertion that the Constitution was not law on a par with other laws, but a paramount law—a “super law,” as Justice Scalia has written—and therefore when the normal collides with the super, the normal must give way.

  In support of this, Marshall penned his great passage, one to which justices of all stripes have retreated in support of judicial activism ever since. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each.”

  Marshall could have ended there, but chose to drone on for an additional thousand words or so in order to support his final, simple conclusion that “a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument,” and “the rule [Article 13] must be discharged.”

  So: Marbury had been appointed; he deserved his commission; Jefferson and Madison had wantonly and willfully overstepped their authority by denying it (implying that Republicans put no value in the Constitution or the rule of law); the court system was the proper venue in which to redress this grievance; mandamus was precisely the right instrument to achieve that end; the justices would have loved to have been of help; but their hands were tied since they must strictly adhere to the rule of law; politics played no part in the decision, because the courts are not a political branch of government.

  Q.E.D.

  * Obiter dicta are remarks by a judge that have only incidental bearing on the case in question and are therefore not binding as precedent.

  * Another example of Marshall’s excess. No Republican or Federalist had ever suggested that an unsigned commission could be embossed with the Great Seal.

  * Ellsworth, in his tenure as chief justice, had never seen fit to find fault with his own work as a senator.

  TWENTY-TWO

  MARGINALIZATION: STUART, PICKERING, AND CHASE

  THE MARBURY DECISION has been described as “a coup as bold in design and as daring in execution as that by which the Constitution had been framed.”1 This is no overstatement. The Marbury decision was a constitutional amendment by fiat, a de facto addition to Article III itself. But, unlike the amendments created under Article V, this fundamental alteration of the Constitution required no two-thirds majority in Congress or ratification by three quarters of the states. Marshall had succeeded in enunciating an immense show of power in a branch of government appointed rather than elected, whose members served for life unless they resigned or were impeached.

  Although the effect of the Marbury decision has certainly been as profound as any single act of government in the American experience, in the immediate wake of the decision, no one seemed to notice its most crucial feature. While almost every major newspaper in the nation either printed the decision or expressed a point of view, the commentary was almost exclusively confined to the putative rebuke issued by the Court to the president. Federalists considered the slap justified and long overdue, while Republicans characterized Marshall’s verbiage as mere carping, a desperate and pernicious effort by a dying party to hang on to power. On both sides, the notion of judicial review as a constitutional principle was almost entirely lost in the uproar.

  There was little doubt in early 1803 which side thought itself the winner. Given their ferocious antipathy to Marshall, Jefferson and his followers were largely quiescent. “Republican newspapers, until then so alert to attack every judicial ‘usurpation,’ had almost nothing to say of Marshall’s daring assertion of judicial supremacy which was later execrated as the very parent of Constitutional evil.”2 Their very willingness to report extensively on the decision without the almost-obligatory excoriation of the chief justice bespeaks how little attention the Republicans were paying to the underlying issue.3 One scholar noted, “The Republican press was so delighted by the Jeffersonian victories in the two cases that it did not recognize that William Marbury had been used as a tool to plant the seeds of judicial review.”4

  Given their general acuity to Federalist intrigues, the lack of Republican reaction might seem surprising. But there seemed to be little reason to join in a battle that had already been won. By whatever artifice, through whatever machinations, in no matter how many thousands of words, Marshall seemed clearly to have surrendered. He had refused to precipitate a national crisis by pitting his branch of government against Jefferson’s. Regardless of whether history would judge the Republicans short-sighted, there seemed to be no reason at the time to respond to a toothless enemy. A Supreme Court whose most potent weapon was chiding language did not seem worth the effort.*

  The Federalist press, fully aware that the party had gained no real advantage in Marbury, was far less sanguine. The Connecticut Courant, for example, printed a letter that said, “Rejoice, ye democrats, at the firmness of your chieftain who dares withhold from the Justices of Columbia their commissions in violation, as the Court declared, of their vested rights.” The New York Evening Post upbraided Jefferson in an editorial titled “Constitution Violated by President.” “Behold a subtle and smooth-faced hypocrisy concealing an ambition the most criminal, the most erroneous, the most unprincipled.” Another Federalist newspaper observed that “it has been solemnly decided in the Supreme Court that Mr. Jefferson, the idol of democracy, the friend of the people has trampled on the charter of their liberties.”5 The Washington Federalist tried to salvage shreds of victory by praising the decision as a “monument of the wisdom, impartiality, and independence of the Supreme Court,” but, even here, Marshall’s decision had generated only hollow enthusiasm, seeming more impressed by length than content.6 The Federalist did let on that the success might be less than complete. “Let such men [Republican congressmen] read this opinion and blush, if the power of blushing still remains within them.”

  For all the bitterness, a surprising lack of criticism came Marshall’s way for his unwillingness to fully engage the enemy. Even Hamilton’s New York Evening Post held its fire on the chief justice, preferring to content itself with spewing vitriol at the president. From the disproportion in the reactions of the adversaries, it seems apparent that both sides knew the Federalists had lost, that nothing Marshall might have done would have changed anything, and that the once-noble party of Washington and Adams had been reduced to a band of fist-shakers.*

  With realpolitik at the fore, that judicial review did not even rate a mention is hardly shocking. Why should Republicans have cared
if the Supreme Court claimed for itself the power to declare a law against the Constitution if, as they believed, the Court would never have the courage to use that power in any practical matter against them?† Moreover, if it ever did so in disagreement with a Republican executive or legislature, the decision could have merely been ignored. Let Marshall spout principles all he wants then, Republicans must have thought. Jefferson himself later wrote that Marshall had indeed exceeded his mandate, not by claiming the right to oversee the Constitution, but by sticking his nose into presidential function.7 Like Jefferson, Republicans might be piqued that Marshall seemed determined to use his office to insult the president but, in the end, talk was a currency worth very little.

  The absence of discussion of judicial review in the Marbury postmortems is not, then, because the principle was universally accepted, but rather because it wasn’t seen as making any difference. What was seen by both sides as the immediate issue—the conflict between Jefferson and Marshall, president and chief justice—once so inflammatory, had seemed to have finally been resolved. The winners basked in victory, the losers groused. Philosophy seemed irrelevant.

  The bulk of these periodical accounts were not published until March, however, after the Court handed down another key decision. Marbury was, after all, not the only case on the 1803 docket with the potential to incite partisan passion and government crisis. There was still the incendiary issue of Jefferson’s court reform in Stuart v. Laird. Immediately after Marshall had completed his Marbury decision at 2 P.M., the justices moved to the continuation of arguments in Stuart, which had begun the previous day.

  For constitutional questions like those posed in Stuart—whether the repeal of the Judiciary Act of 1801 and its replacement by the Judiciary Act of 1802 was lawful—the Marbury decision had, in theory, changed everything. Before Marbury, the question of whether or not the Court was even empowered to rule on Adams’s ephemeral circuit court appointments was open to argument. Once Marshall’s decision was read, however, that question, at least in the eyes of the justices, had been resolved. With precedent now on the books for the Court to strike down an act of Congress as repugnant to the Constitution, the Judiciary Acts of 1802 were as much in play as had been the Judiciary Act of 1789. Stuart would be the test to see if Marshall had been serious in asserting that the Court was to have final authority “to say what the law is,” or had merely been pontificating.

  If it were the former, a direct challenge to the constitutionality of Jefferson’s court-reform act took on increased significance. Stuart, not Marbury, would then become the hinge on which the role of the judiciary in American government would swing. In Marbury, after all, unconstitutionality had been used to justify a result pleasing to Republicans. If the same power was extended to Stuart, Republicans would not be pleased at all. In that eventuality, Jefferson and the Republican Congress might choose to simply ignore the Court and, in effect, run the judiciary by decree. Stuart might well become the case that determined whether or not what the justices said mattered at all.

  As soon as arguments began, Charles Lee, once again proving himself to be a clever and resourceful advocate, altered his remarks to incorporate the Marbury decision.8 With Marshall’s opinion on the record, an established precedent, Lee reasoned quite correctly that what held for Marbury should now hold for Stuart. If Section 13 of the Judiciary Act of 1789 was unconstitutional, Jefferson’s court reform must be as well and must therefore be set aside.

  But Lee was no longer addressing himself to Marshall. The chief justice, with a sense of propriety that had been lacking in Marbury, recused himself from sitting on Stuart. He had served on the circuit court that was at the center of the dispute, he noted, and felt it inappropriate to participate as a justice in the appeal. The irony that this sort of overlapping jurisdiction was at the heart of the plaintiff’s case apparently went unremarked upon. With the senior associate, Justice Cushing, also absent due to illness, Lee therefore directed his remarks to Justice Paterson, next in seniority.

  So why did Marshall cede control of the court in such a vital affair, after he had previously made such effort to control it, even dictatorially? Justices regularly sat on cases that they had heard previously on circuit.9 “It wasn’t,” according to Bruce Ackerman, “an attack of judicial ethics.” Rather, he notes, “Marshall withdrew in Stuart because he didn’t want to write an opinion explaining why the commissions of Supreme Court justices were not as sacrosanct as the commissions of lowly justices of the peace. He didn’t want to write an opinion explaining why it was unconstitutional for Congress to expand original jurisdiction of the Supreme Court, but it was perfectly okay for Congress to force the justices to hold trials throughout the United States. And he certainly didn’t want to announce an opinion ignoring Marbury entirely, and thereby suggest that the Court didn’t take its own pretensions seriously. Let Paterson do it.”10

  Paterson deserved better than to have been placed in this humiliating position. Just a short time before, he had been forced to sit silently at Marshall’s side and acquiesce in a declaration that the authors of Article 13 of the Judiciary Act of 1789 had blundered in creating a law that went counter to the Constitution. Paterson absorbed the slight, although he was perhaps more aware than anyone else in the room of how laughable was Marshall’s reasoning.

  But Paterson’s role takes on even greater pathos since he, not Marshall, had been the overwhelming choice among Federalists for chief justice after Ellsworth resigned, and he had coveted the position fiercely. To have been passed over for the universally respected Jay had been one thing, but when the New Yorker declined, Paterson had every reason to believe the plum would be his. But instead, it was handed to Marshall by a president many thought was irrational.11 As Hamilton and other High Federalists saw things, the conniving Marshall had only been able to turn the trick by using his position as secretary of state to insinuate himself into Adams’s fragile confidence. Marshall had, after all, been standing with the president when Jay’s communication arrived and the snap decision for his replacement had been made. Paterson was too loyal a Federalist and too loyal an American to make his bitterness public, but most other Federalists had been furious with the choice.

  Now Paterson had finally become chief justice, albeit for this one case only. Still, with Marshall excusing himself, at least officially, the New Jerseyan could, if he wished, grasp the reins on this most vital question instead of meekly carrying Marshall’s water. Lee’s arguments certainly gave him ample room to do so. High Federalists had been waiting for an opportunity to confront Jefferson for two years, and Paterson had been placed in a position to do so.

  The Stuart opinion was delivered on March 2, 1803. The Court was back in chambers, Chase now recovered, but Cushing was still absent. The room was full, waiting to see whether Paterson would fire the shot that Marshall had declined. The spectators were braced for a long, suspense-filled day. Marshall’s decision in Marbury had taken almost five hours to read, and it was not until the final few minutes that his intentions had been made clear.

  But there would be no suspense that day. Paterson’s decision was only four short paragraphs. When he had completed his reading, Federalism, for all intents and purposes, had ceased to be a political force in the United States.

  The decision, such as it was, responded to only two points. The first was whether or not a court other than the midnight-judge fourth circuit— namely Marshall’s fifth circuit—could hear the case, whether “as the bond was given for the delivery of property levied on by virtue of an execution issuing out of, and returnable to a court for the fourth circuit, no other court could legally proceed upon the said bond.”12 To this, Paterson gave short shrift. “Congress has constitutional authority to establish from time to time such inferior tribunals as they may think proper, and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the constitution to prohibit or restrain the exercise of legislative power.”13

  Rem
arkably, Paterson here referred to the very passage in Article III, Section 1 that Marshall had conveniently omitted to justify striking down Article 13 in his Marbury opinion. The selectivity was hardly a coincidence. The last thing Marshall had wanted was to acknowledge that the legislature had the right to “transfer a cause from one such tribunal to another”—the power to issue a mandamus, for instance—but Paterson needed the clause as a basis for what followed.

  “The present is a case of this kind,” Paterson continued. “It is nothing more than the removal of the suit brought by Stuart against Laird from the court of the fourth circuit to the court of the fifth circuit, which is authorised to proceed upon and carry it into full effect. This is apparent from the ninth section of the act entitled ‘an act to amend the judicial system of the United States,’ passed the 29th of April 1802. The forthcoming bond is an appendage to the cause, or rather a component part of the proceedings.”14

  The first question had thus been answered. Marbury or no, the Court would not declare the Judiciary Act of 1802 unconstitutional. Even worse for Federalist ideology, the five justices (Marshall might be abstaining, but he was hardly absent) would use the despised legislation as the basis of its ruling. In this, and in taking a simple, declarative position, and declining to expound on the constitutional issues raised by repeal of the Judiciary Act of 1801, Paterson signaled full retreat. The justices would opt to keep their jobs rather than make a point.

  All that remained was the question of circuitriding, and so the second argument that Paterson addressed was the contention “that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose.”