A People's History of the Supreme Court

by Peter Irons

  In the last-minute rush, however, Marshall neglected to have the commissions delivered to the “midnight judges,” as Republicans derisively called them. One account—probably apocryphal—had the incoming attorney general, Levi Lincoln, dramatically striding into Marshall’s office with Jefferson’s watch in his hand. Pointing to the timepiece, Lincoln informed Marshall that midnight had arrived and directed him to leave the office. Humiliated by this order, Marshall laid down his pen and departed. Whether or not this actually happened, Marshall did keep signing judicial commissions until at least nine o’clock that night. Shortly after Jefferson took his oath as president on March 4, 1801, James Madison took Marshall’s office as secretary of state and sat behind the desk on which the undelivered commissions rested.

  This was the odd beginning of the famous case of Marbury v. Madison, which started with Marshall’s oversight in 1801 as secretary of state and culminated in 1803 with his forceful assertion of judicial review as Chief Justice. The two years in between were marked by Republican efforts to hobble the federal courts that remained as Federalist redoubts. “The Federalists have retired into the judiciary as a stronghold,” Jefferson complained after taking office, “and from that battery all the works of republicanism are to be beaten down and erased.” He directed Madison to deliver only twenty-five of the forty-two commissions Marshall left on his desk, perhaps to cut expenses for judicial salaries, even the small amount for these minor posts.

  Of the seventeen slighted judges, only four—including William Marbury—took their claims to court, filing suit in the Supreme Court and asking for a “writ of mandamus” against Secretary Madison. This common-law writ, with roots in English practice, empowers judges to order recalcitrant officials to carry out their duties; the Latin term comes from the word for “hand.” In effect, the judge issuing the writ is forcing the official to move his hand. Marshall had not lifted his hand to deliver Marbury’s commission and Madison now refused to complete the task.

  Marbury’s suit against Madison languished in the Supreme Court clerk’s office for two years before it was argued. The Court, in fact, did not conduct any business for more than a year, as the Republican majority in Congress exacted revenge on the Federalists for passing the Sedition Act in 1798 and for packing the federal courts in 1801. Over Federalist protests, Congress repealed the Judiciary Act of 1801 and then passed a law moving the Court’s next term, scheduled for June 1802, to February 1803. This move did not remove any sitting judges from their posts, but, the Republicans wanted to prevent the Court, from striking down the repeal bill as unconstitutional while they prepared impeachment charges against federal judges (and perhaps even Supreme Court justices) for partisan bias in Sedition Act prosecutions.

  Although some extreme Federalists implored Marshal to convene the Court in June 1802 as originally scheduled, he prudently decided to avoid a confrontation with Congress that might have provoked even further efforts to cripple the Court. But when the justices did meet in February 1803, for the first time in fourteen months, Marshall was ready to respond. Both sides in Marbury v. Madison expected the justices to issue the requested writ of mandamus, which would likely have precipitated the constitutional crisis that political moderates feared and that extremists in both parties welcomed as an overdue showdown between the Republican “Jacobins” and the Federalist “Tories.”

  Anticipating defeat, James Madison did not even send a lawyer to defend him, passing up the chance to blame Marshall for the entire mess. William Marbury’s lawyer, former attorney general Charles Lee, brimmed with confidence as he addressed the justices. The Court, had three simple questions before it, Lee argued, and the answer to each was obvious. First, was Marbury entitled to his commission? Article I of the the Constitution empowers Congress to create federal offices. Marbury was duly nominated for the post that Congress established, he was duly confirmed by the Senate, and his commission was duly signed by the secretary of state, as the law provided. The answer to Lee’s first question was obviously yes. Second, did the law provide Marbury a remedy for Madison’s refusal to deliver his commission? The answer came from the old maxim “Every wrong provides a remedy.” Otherwise, courts would have no power or even purpose.

  The only remaining question was whether mandamus provided the remedy in Marbury’s suit. Lee did not even consider this a question but a settled fact. The First Congress had authorized the Supreme Court in Section 13 of the Judiciary Act of 1789 to issue writs of mandamus against “persons holding office under the authority of the United States.” Secretary Madison was such a person, and the writ of mandamus was necessary to force his compliance with a clear legal duty to Marbury. Lee stated his case as if he were reciting a simple syllogism.

  Chief justice Marshall issued the Court’s opinion in Marbury v.Madison on February 24, 1803, just two weeks after Lee’s argument. Given the rhetorical polish of this momentous opinion, Marshall had most likely decided the case and begun writing before Lee opened his mouth. He wrote for himself and three other justices; because, of illness, William Cushing and Alfred Moore did not hear argument or vote in the case. Marshall posed the three questions Charles Lee had asked, and answered each in turn. The first and second gave Marshall no trouble. It was “the opinion of the Court,” he wrote, that “by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of the peace” and that “the seal of the United States, affixed thereto by the secretary of state,” conferred on Marbury “a legal right to the office” he sought. Madison’s refusal to deliver that commission “is a plain violation of that right, for which the laws of his country afford him a remedy.”

  Marbury won the right to his commission, but Could the Court order Madison to deliver it? Marshall’s answer to this question surprised everyone, and cleverly defused the constitutional crisis he hoped to avoid. Congress had authorized the Supreme Court to issue writs of mandamus, but Article III of the Constitution limited the Court’s “original jurisdiction” to cases involving ambassadors, foreign consuls, and states. In all other cases, the Court had only “appellate jurisdiction” over decisions of lower courts, both state and federal. William Marbury made the fatal mistake of filing his suit in the Supreme Court, wrongly assuming that it had jurisdiction under Section 13 of the Judiciary Act to decide his claim. Marshall concluded that “the jurisdiction must be appellate, not original,” for the Court to authorize writs of mandamus.

  With that conclusion, Marbury’s suit against Madison was over. He could, of course, ask a lower court to issue the writ; Marshall had not offered this advice in his opinion, but a good lawyer like Charles Lee would know how to remedy the error. Normally, if a judge decides that his (or her) court lacks jurisdiction over a case, the judge refrains from expressing an opinion on the merits of that case. But Marshall did not stop with his holding that Marbury had filed suit in the wrong court. He continued with a stern lecture to Congress, asserting the Court’s power to declare the offending Section 13 unconstitutional. His words rang with certitude and confidence. He began with a rhetorical question. “If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” Answering yes to this question, Marshall wrote, would be “an absurdity too gross to be insisted on.”

  Marshall’s next question was implied by the first. Who decides if a law is unconstitutional? His answer was clear and simple. “It is emphatically the province and duty of the judicial department to say what the law is,” he wrote. Because “the Constitution is superior to any ordinary act of the legislature,” the provisions of the Constitution “must govern the case to which they both apply.” Arguments that “courts must close their eyes on the Constitution, and see only the law,” Marshall wrote, “would subvert the very foundation of all written constitutions.”

  In going beyond the questions raised in Marbury and proclaiming the Supreme Court’s p
ower to strike down congressional acts, Marshall deliberately threw down a gauntlet before Congress. He took a calculated risk, knowing that President Jefferson had recently asked Congress to impeach a Federalists judge, John Pickering of New Hampshire, for partisan bias in Sedition Act prosecutions. Marshall must have known that if Pickering—who was both alcoholic and insane—was removed from office, the Republicans might turn their guns on the Supreme Court. The political stakes were high, but Marshall did not flinch.

  Several generations of historians have elevated Marshall to the pantheon of judicial greatness, and have annoited his Marbury opinion as the most important in American constitutional history. Marshall certainly led the Supreme Court from obscurity to a position of power. But his Marbury opinion did not break new legal ground. The doctrine of judicial review had been stated by several Framers of the Constitution in 1787, was refined in The Federalist Papers during the ratification debates, and was forcefully restated by justice Paterson in 1795, when he wrote in a circuit court decision that “every act of the legislature repugnant to the Constitution is absolutely void.” What transformed Marbury from a simple “jurisdiction” case, sending the plaintiff back to a lower court, into a constitutional landmark was John Marshall’s determination to force a showdown with Thomas Jefferson—his political foe and personal enemy—over the most basic question in politics: Who rules?

  The Marbury case presented this question in its clearest form. If Congress ruled in authorizing the Supreme Court to issue writs of mandamus, then Congress could expand or contract the Court’s jurisdiction at will. And if the president ruled in directing James Madison to withhold judicial commissions that Congress had confirmed and Marshall had signed, the executive branch could evade judicial orders. But if the Supreme Court could strike down legislative acts, and invalidate executive actions based on such laws, the justices would hold the power “to say what the law is” and bind the Congress and president to their decisions.

  Marshall’s opinion in Marbury is best understood not as a legal opinion but as a political act. As a committed Federalist, he knew that his nationalist views could only survive Jefferson’s “Jacobin” regime if the Supreme Court employed the power of judicial review to keep the president and Congress in check. Marshall won his first duel with Jefferson in the Marbury case. There were, in fact, no more shots fired in public before Marshall died in 1835.

  10

  “These Jarring and Discordant Judgments”

  Chief Justice Marshall’s opinion in Marbury v. Madison left both sides in the lawsuit with a partial victory, but the Supreme Court emerged as the real winner in this first clash between the three branches of the federal government. Republicans in Congress, and perhaps President Jefferson, would have loudly denounced Marshall if the Court had ordered Secretary Madison to deliver Marbury’s commission. But he “sophisticated” his opinion so cleverly that no one had grounds for complaint. The only remaining obstacle in Marshall’s path, as he sought to fashion the Court into a powerful institution, was the prospect of impeachment of one or more justices. The House had impeached Judge John Pickering in 1803 for his partisan bias in Sedition Act prosecutions, and the Senate convicted him on March 12, 1804. Pickering had become an embarrassment to the bench, since he was clearly insane, and his conviction prompted no Federalist outcry.

  Within an hour of Pickering’s conviction, the House voted to impeach Justice Samuel Chase. The intemperate justice might have been forgiven his hectoring of lawyers and defendants in Sedition Act prosecutions, since the law had expired in 1800, but he offended Jefferson with a bitter attack on the repeal of the judiciary Act of 1801. He told a grand jury in 1803 that jeffersonian “Mobocracy” threatened to destroy “peace and order freedom and prosperity.” Jefferson asked his party’s House leader to consider impeaching this “insolent and overbearing man.” The president wanted to avoid Federalist charges of conducting a personal vendetta against Chase, so he cautioned that “it is better that I should not interfere.” But he clearly had interfered in the case, determined to punish his judicial foes.

  The Constitution provides in Article II that “civil officers of the United States” can be impeached only for “treason, bribery, or other high crimes and misdemeanors.” But Article III states that Supreme Court justices shall hold office “during good behavior.” Justice Chase had not violated any criminal laws, but his judicial behavior was clearly not good. Which clause should prevail in deciding his impeachment charges? Judge Pickering was not guilty of criminal offenses, but was removed for exceedingly bad behavior. Chase’s offenses were also political in nature, despite his obvious partisan bias and injudicious behavior.

  Chase was hardly the only federal judge who showed prejudice on the bench; President John Kennedy paid his political debts to Southern Dixiecrats by appointing several vicious racists to federal district courts. One judge he placed in Mississippi, Harold Cox, routinely insulted blacks, calling them “chimpanzees” from the bench, and refused to obey direct orders from appellate judges and the Supreme Court in segregation cases. Were Justice Chase and Judge Cox both unfit for judicial office? The answer is clearly yes. Were they guilty of “high crimes and misdemeanors” and subject to impeachment? The answer depends on whether this phrase, inserted into the Constitution by the Framers with no discussion of its meaning, refers only to criminal offenses. The wording suggests that it does, but the English common-law interpretation of the phrase arguably (a word that lawyers love) encompassed political offenses as well as crimes. Political attacks on the British crown were criminal acts under the law of “seditious libel,” which was incorporated into American law after the Revolution.

  Justice Chase entered the Senate chamber for his trial on January 3, 1805, anticipating his conviction and removal from office. Republicans outnumbered Federalists by twenty-five to nine in the Senate, two more than the two thirds required for conviction. Chief Justice Marshall and all of Chase’s colleagues attended the proceedings to show their support. The political basis of the charges—the House had filed eight articles of impeachment—was clear from the start. Senator William Giles, who headed the Republicans, boasted to John Quincy Adams during the trial, “We want your offices, for the purpose of giving them to men who will fill them better.” The younger Adams reported to his father that Chase’s impeachment “was unquestionably intended to pave the way for another prosecution, which would have swept the Supreme Judicial Bench clean at a stroke.”

  Faced with an overwhelming Republican Senate majority, and saddled with Chase’s widespread unpopularity, Chief Justice Marshall considered striking a deal with his political enemies. “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature,” he wrote to Chase before the trial began. “A reversal of those legal opinions considered unsound by the legislature would certainly better comport with the mildness of our character than a removal of the judge who has rendered them unknowing of his fault.”

  This was an astonishing proposal by the forceful Chief Justice. Marshall was suggesting that the Supreme Court, which two years earlier had wielded the power of judicial review over Congress in the Marbury case, now allow Congress to overrule the Court. Members of Congres, from both the left and right, have often proposed legislative reversal of Court decisions, but Marshall was the only justice who ever floated such an idea, even in a private letter. Fortunately for Marshall, his letter to Chase—suggesting in effect a “plea bargain” to avoid his conviction—never reached the press or the Senate floor. If it had, the course of American constitutional history might have been profoundly changed. Giving Congress a veto power over Supreme Court decisions would have reduced the Court to the insignificant role it had played before Marshall became Chief Justice.

  Chase’s trial dragged on for a month. Marshal was called a witnesss and struck observers as nervous and evasive in his testimony. The Chief Justice was not accustomed to hostile i
nterrogation, but he should not have lost his customary composure. The Republican Senate voted to acquit Chase on all eight charges. Five did not even gain a simple majority. Only the charge based on Chase’s harangue in 1803 against Jefferson’s “Mobocracy” came close, but the nineteen votes for conviction fell short of the twenty-three required to remove him from the Court. Six Republican senators, in fact, voted to acquit Chase on every charge. These defections prompted one Republican leader to ask why “there should be any class of men in society in any office that should be treated like gods, placed so far above the reach of censure and almost dignified with papal infallibility?”

  President Jefferson reacted in calmer words, predicting to a friend that “impeachment will not be tried again” against Supreme Court justices, but lamenting that “we have no law but the will of the judge.” Although Jefferson finally patched up his quarrels with John Adams, he never forgave Marshal for clipping his presidential wings. Writing in 1820, more than a decade after he returned to his Monticello estate, Jefferson complained that the “judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric.” He deplored Supreme Court opinions issued “with the silent acquiescence of lazy and timid associates, by a crafty chief judge who sophisticates the law to his own mind by the turn of his own reasoning.” What Jefferson neglected to add was that he had chosen three of Marshall’s associates, and that the justices he placed on the Court all joined Marshall in most of decisions that upheld federal power over the states and judicial power over the legislative and executive branches of government. William Johnson, Jefferson’s first nominee to the Court in 1804, was a loyal Republican when he took the bench, but soon fell under Marshall’s sway. He later confessed that “I found that I must either submit to curcumstance or become such a cypher . . . as to effect no good at all. I therefore bent to the current.” Johnson served until 1834, almost the entire length of Marshall’s tenure as Chief Justice; although his thirty-four dissents (slightly more than one per year) set the record for the Marshall Court, Johnson never influenced enough fellow justices to challenge Marhall’s dominance. Jefferson’s other two justices, Brockholst Livingston of New York and Thomas Todd of Kentucky, served on the Court for thirty-six years between them and left no visible mark on constitutional law.