On February 24, 1803, the Supreme Court handed down one of its best known and most consequential decisions in Marbury v. Madison. It is often described as the case in which the Court created “judicial review”: the duty of courts to test the constitutionality of government actions and to strike them down when they fail. The decision is also profoundly misunderstood, shrouded by a myth that has confused generations of law students: the myth of judicial usurpation.
Although judicial review is generally regarded as valid today, the notion that it was invented in Marbury has long been used to cast doubt upon its legitimacy. Marbury has been characterized by some scholars as a judicial power-grab; its 124th anniversary is as good a time as any to dispel this myth. But understanding Marbury is also key to understanding what is required of judges who are charged with enforcing the Constitution today — and appreciating the extent to which the judiciary has in recent years abdicated its constitutional duty.

The Case

To say that the context of Marbury v. Madison was politically charged would be a serious understatement. The election of 1800 remains one of the closest and most acrimonious presidential contests in American history. “Federalist” supporters of the incumbent administration, headed by President John Adams, painted their “Republican” opponents as threats to ordered liberty; Republicans described the Federalist-dominated government as a “reign of witches” and accused Federalist leaders of seeking to establish a monarchy.

The Republicans ultimately prevailed — but Thomas Jefferson and his running mate, Aaron Burr, received an equal number of votes from Republican electors, throwing the election to a Federalist-dominated House. When the smoke cleared, Jefferson was chosen as the third president of the United States.

But on February 13, 1801, a lame-duck Federalist Congress, determined to keep the judiciary in Federalist hands, passed the Judiciary Act of 1801, which created dozens of new federal circuit judges and justices of the peace — to be appointed by President Adams, before Jefferson could be sworn in on March 4. Importantly, the Act also conferred original jurisdiction on the Supreme Court to issue writs of mandamus to “persons holding office” under federal law — that is, to order executive officials to take (or refrain from taking) particular actions.

On March 3, Adams signed, and the Senate confirmed, dozens of appointments, which led to the delivery of the “midnight commissions” — dispatched to new judges on the night before Jefferson’s inauguration — a task assigned to outgoing Secretary of State and incoming Chief Justice John Marshall. But, in what would prove a fateful omission, Marshall failed to deliver the commission of one William Marbury, who was to serve as justice of the peace for the District of Columbia.
When Jefferson took office on March 4, 1801, he discovered a sheaf of undelivered commissions and promptly ordered them withheld. Marbury sought a writ of mandamus from the Supreme Court to compel Jefferson’s Secretary of State, James Madison, to deliver Marbury’s commission. The case was set for argument the following term, and it was destined to become a landmark of American jurisprudence.

The Decision

Ultimately, the Supreme Court held that Marbury did indeed have a right to his commission, which had been duly signed by the president and confirmed by the Senate, but the section of the Judiciary Act that authorized the Court to issue the writ of mandamus Marbury sought was itself unconstitutional.

Chief Justice Marshall evaluated the law independently, without deference to Congress or the president, seeking to determine whether the law was calculated to achieve a constitutionally proper end of government. He ultimately concluded that it was not — that Article III of the Constitution did not allow Congress to give the Supreme Court original jurisdiction over mandamus actions.

He described the Court’s decision to set aside the statute as following from the judicial “duty” to “say what the law is” and to “expound and interpret” the law in applying it to “particular cases.” It was, wrote Marshall, “the very essence of judicial duty” to determine which of two “conflicting rules” — that set forth in the Judiciary Act and that set forth in the Constitution — “governs the case.” A statute that is not authorized by the Constitution was “not law,” and thus, it did not “constitute a rule as operative as if it was a law.”

In the centuries since Marbury, gallons of scholarly ink have been spilt arguing that Marshall used the case to usurp a novel, constitutionally unauthorized power for the Court. If Marbury was indeed a lawless decision, it would cast doubt on the idea that courts have a duty to exercise independent judgment about the law, as well as the authority to invalidate unconstitutional acts by other branches of government.

In fact, Marbury was neither novel nor lawless. As Philip Hamburger has shown, Marshall affirmed and discharged a well-understood judicial duty, with hundreds of years of Anglo-American jurisprudence behind it — a duty that was directly incorporated into the Constitution through Article III’s grant of “the judicial power” to the Supreme Court. At its core, the office of judging is one of independent judgment in accordance with the law of the land, without deference to extra-legal beliefs or desires, whether those of the judge, government officials, or members of the public. Long before Marbury, judges had been exercising independent judgment and voiding government enactments that were contrary to the law of the land.

The Upshot

If Marbury appears remarkable today, this may be because the careful, impartial, and independent judgment exercised by Marshall has been largely replaced by judicial deference to the legislative and executive branches.

Following the Court’s decisions in Chevron v. NRDC (1984) and Auer v. Robbins (1994), judges are supposed to presume that executive agencies’ interpretations of the law and scope of their own powers are correct — essentially abdicating the duty, in Marshall’s words, to “expound and interpret” the law in applying it to “particular cases.”

When it comes to reviewing the constitutionality of statutes, the situation is no better. The default standard of constitutional review — the so-called “rational-basis test” — has been described by the Court in terms that would (if taken literally) make a successful constitutional challenge logically impossible. No one could refute every conceivable basis which might support [the government’s actions],” however unmoored from reality that basis might be. Under this standard, judges are even required to help the government by inventing theoretical justifications for the law, abandoning the impartiality that is essential to independent judgment and due process of law.

In general, only a few constitutional rights, which the Court has declared to be “fundamental,” based on some hazy, evershifting criteria, still trigger meaningful judicial engagement to review the facts and the constitutionality of the government’s means and ends. Doctrines of judicial deference to the executive and legislature have facilitated the systematic abdication of the judicial duty to “say what the law is.”

Remembering the real Marbury can help both judges and citizens to grasp the core duty that the Constitution imposes upon the judiciary and to understand what judges must do in order to fulfill it. The judiciary is a co-equal branch of government, and it serves as the last line of legal defense for individuals who stand to be deprived of what is rightfully theirs by unconstitutional exercises of legislative and executive power.

Judges must adopt a posture in constitutional cases that enables them to “guard the Constitution and the rights of individuals” — in fact, not merely in political theory. Marshall’s opinion in Marbury provided a vivid example of the judicial engagement required of all those who draw their power from Article III — a standard to which judges today would do well to return.