By Cliff Sloan and David McKean, PublicAffairs, New York, N.Y. 258 pages, $26.95
Chief Justice John Marshall did not announce the decision in Marbury v. Madison, Cranch (5 U.S.) 137 (1803), from a hallowed hall of justice, but instead from the parlor of a boardinghouse, Stelle’s Hotel, now the site of the Library of Congress. It was apparently an improvement over dingy Committee Room Two of the Capitol Building, the U.S. Supreme Court’s regularly assigned chamber. This historical nugget, along with the full back story of Marbury, is vividly depicted in “The Great Decision: Jefferson, Adams, Marshall and the Supreme Court.”
Co-authors Cliff Sloan, a partner in the Washington Office of Skadden, Arps, Slate, Meagher & Flom (a colleague) and David McKean, former chief of staff to Senator John Kerry and author of a superb biography of New Dealer Tommy Corcoran, present a well-crafted and thoroughly engaging account of the social, political and intellectual forces that helped shape this seminal decision.
The story of the U.S. Supreme Court as a true coordinate branch of the federal government actually begins not in 1789 but in 1803, when Chief Justice Marshall announced the decision in Marbury. Speaking for the entire Court, the chief justice firmly established for the first time the Court’s power of judicial review over an act of Congress. Commonly viewed as one of those few whose status is comparable to that of the Constitution itself, Marbury is also notable as the first decision to project federal judicial power through a clearly stated “opinion of the Court,” a departure from the previous seriatim opinion practice.
Before Marbury, the Court’s stature as an equally prestigious branch of government in the federal system remained doubtful, as Sloan and McKean make clear. This was illustrated not only by Congress’ failure to plan for a suitable home for the Court in the new capital of Washington, D.C., but by the relatively brief tenures of the first appointees to the Court. Only one of President George Washington’s six appointees (the Judiciary Act of 1789 set the number of justices at six) continued to serve when the capital was moved from Philadelphia in 1800.
Moreover, a position on the Court was not viewed as being sufficiently important to preclude other simultaneous government service. While continuing to serve as chief justice, John Jay accepted an appointment as special ambassador to England and negotiated the Jay Treaty. Jay only resigned as chief justice after being elected as governor of New York upon his return from England in 1795.
The low public esteem afforded the chief justice post is demonstrated by a New York newspaper’s reference to Jay’s new position as a “promotion.” Subsequently, Jay’s successor, Chief Justice Oliver Ellsworth, served in a dual capacity as minister to France. When Ellsworth resigned from the Court, President John Adams once more offered the chief justice position to Jay. Jay declined, stating: “I left the Bench perfectly convinced that under a system so defective it would not obtain the energy, weight and dignity which are essential . . . to acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.”
Near the close of his administration, President Adams chose to appoint John Marshall of Virginia, a distant relative of Thomas Jefferson, as the next chief justice. The men disliked each other. As a young man, Marshall had served as Washington’s aide during the Revolutionary War. Later, at the urging of Washington, Marshall ran as a Federalist candidate for the House of Representatives and was elected. When President Adams appointed Marshall as chief justice, Marshall was already serving in Adams’ cabinet as secretary of state. Even after being sworn in as chief justice, Marshall continued to serve as secretary of state until his successor, James Madison, was named as part of the new Jefferson administration.
The dawn of the 19th century was a time of tumultuous political change. It was also the time when America’s two-party system fully took root. Whatever political harmony had been fostered by President Washington’s leadership dissolved into partisan politics with the formation of the Democratic-Republican Party.
Simply stated, the Federalist Party believed in a strong, central government and the fostering of industry while the Democratic-Republicans favored a looser confederation of states based on a primarily agrarian society.
The Federalists, led by President Adams, were finally ousted from power by the upstart Democratic-Republicans in the 1800 election, losing not only the presidency but also control of Congress. To complicate matters, the two Democratic-Republican candidates, Jefferson (who was Adams’ vice president) and Aaron Burr each received an equal number of electoral votes, causing the presidential contest to be decided by the still Federalist controlled House. Through deft politicking among the outgoing Federalists, Jefferson was ultimately elected.
The delay in determining the new president along with a longer transition period (at that time the presidential inauguration did not take place until March) afforded the Federalists additional time for political maneuvering. To the consternation of President-elect Jefferson, Adams, during his final month in office, made a barrage of last minute appointments of loyal Federalists to a number of offices including the appointment of the so-called “midnight judges.”
During this time, Adams also submitted 217 nominations to the Federalist controlled Senate, including 93 for judicial and legal offices. Ironically, Marshall, still serving as secretary of state, was the point person for these appointments.
The “midnight judges” resulted from the Judiciary Act of 1801, an act that was pushed through the lame duck Federalist Congress. Among its positive features, the act created a new system of appellate courts staffed with full-time judges, thus eliminating the Supreme Court justices’ obligation to ride circuit. As a result, the new courts enabled the justices to avoid sitting in review of their own decisions.
The act also created dozens of justice of the peace positions and William Marbury, a prominent Federalist, was appointed and confirmed by the Senate as a justice of the peace in the District of Columbia. While Adams was feverishly signing commissions and forwarding them to Secretary of State Marshall to be finalized and delivered, Marshall was not able to deliver a number of the commissions – including Marbury’s commission – before James Madison took office as the new secretary of state.
Jefferson and Madison were appalled by Adams’ actions, which they believed would leave a lasting Federalist imprint on the government. As a result, Madison refused to deliver the undelivered commissions, including Marbury’s.
Marbury along with three other disappointed appointees hired former Attorney General Charles Lee as counsel. He brought suit in the Supreme Court in December 1801 under its original jurisdiction as expanded by the Judiciary Act of 1789 and sought a writ of mandamus to compel Madison to deliver the commissions. The 1789 act provided that the Supreme Court should have the power “to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States.”
Based on a preliminary motion, the Court ordered Madison to show cause why the Court should not issue the writ of mandamus. In the meantime, the Democratic-Republican Congress passed legislation repealing the Judiciary Act of 1801 and enacted the Judiciary Act of 1802, which again reorganized the judiciary and reinstated the justices’ duty to ride circuit.
That law also reconfigured the Supreme Court’s terms with the result being that the Court was shut down for 14 months. Consequently, the Court would not hear Marbury until its next session in February 1803.
Marbury was both heard and decided by the Supreme Court that February. In listening to the decision, Marbury and his counsel must have thought initially that victory was at hand, the Court having found in his favor on the issues of whether he had the legal right to the position and the commission of office. In turn, he was entitled to a remedy, with mandamus being an appropriate remedy.
Chief Justice Marshall and the Court, however, masterfully avoided a confrontation with the president by holding that the section of the Judiciary Act of 1789, which expanded the Court’s original jurisdiction beyond that granted by Article III, was unconstitutional. Thus, the Court was not empowered to grant a writ of mandamus in favor of Marbury as part of its original jurisdiction.
“The Great Decision” serves as a first-rate guide to Marbury v. Madison and the penetrating insights provided by Sloan and McKean should spur every lawyer to give it a fresh reading. The full text of the decision is reprinted in the book’s appendix.
Andrew Muscato is counsel in the litigation department of Skadden, Arps, Slate, Meagher & Flom.