The Great Chief Justice


Here was the first exercise by the Supreme Court as a whole of its controversial veto power over Congress, of its full right of judicial review. John Marshall, by fastening on a petty point of proper legal procedure in an essentially insignificant case, by attacking a harmless bit of a statute that had been enacted not by Republicans but by Federalists, by handing his political opponents, with magnificent opportunism, a strictly Pyrrhic victory (Marbury never got his commission), established the supremacy of the judiciary over the rest of the federal government. That supremacy still holds today.

In touting Marshall’s eloquent defense, in Marbury v . Madison, of constitutions as read by judges against laws passed by legislatures, the customary adulatory accounts frequently overlook a few other interesting facts:

In the first place, his argument was not precisely puncture-proof; with no authoritative precedent to fall back on (he was creating it, not following it) he had to resort to theory and logic to prove his point; his theory was often quite one-sidedly inaccurate, as in his bland claim of universal agreement that constitutional words could automatically void legislative acts, a subject only recently hotly debated in the U.S. Congress; and his logic conveniently skipped the basic question whether judges were any better qualified than legislators or executives to interpret constitutions.

In the second place, Marshall’s sincerity—or at least the depth of his conviction—was somewhat open to question. Only seven years earlier, in the course of arguing before the Supreme Court in defense of a Virginia statute which was under attack, he had insisted that “the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the constitution”—and of course the U.S. Constitution nowhere expressly gives such a right. It can at least be doubted whether Marshall, a practical and politically knowledgeable man, would have asserted the right of judicial review as strongly as he did in Marbury v . Madison if a Federalist Congress and Administration had just taken over and the judiciary had been overwhelmingly Republican.


In the third place, Marshall’s decision in Marbury v . Madison, for all its doctrinal boldness, was actually, when considered in its context, quite cautious and not terribly courageous. Marshall did not say to Congress: You may not do something yourselves—such as set up an income tax or prohibit child labor. All he said was: You may not authorize us , the Supreme Court, to do something—namely, issue writs of mandamus.

Moreover, the less-than-bravery of Marbury v . Madison was underlined in a decision handed down within a week after the disposal of that celebrated case. The other case, Stuart v . Laird by name, gave the Court a wide-open opportunity to call the Republican repeal of the Federalists’ 1801 Judiciary Act unconstitutional; indeed the Federalist press had been crowing, a bit prematurely, that this was precisely what Marshall’s Court would do. Instead, the Court—with Marshall not sitting officially but clearly commanding his colleagues—decorously ducked the question of the repeal Act’s constitutionality, in ruling that Supreme Court Justices could be made to sit in lower federal courts (the 1801 Judiciary Act had relieved them of this duty and the repeal Act had restored it) simply because they had been doing it for some fourteen previous years. Had precisely the same reasoning been used in Marbury v . Madison about the Court’s power to issue writs of mandamus—which the Court had also been doing for several years—Marshall’s most famous decision would have had to go the other way.

Thus, from every standpoint except immediate political expediency plus perhaps long-range political foresight, the great decision that nailed down Supreme Court dominance of the national government was a legal cripple. Lacking, perforce, any solid basis in precedent, vulnerable in theory and in logic, its central core of reasoning reversed within a week by another Court decision, Marbury v . Madison may seem scarcely worthy of the plaudits that have been heaped on it or the deference that has been paid it in the intervening century and a half. But both the plaudits and the deference, like the decision itself, and like every significant Supreme Court decision since, were and are rooted in politics, not in law. This only the ignorant would deny and only the naive deplore.