Reading Marbury v. Madison and Stuart v. Laird: First Essay

What is true about the Gospel of John for Biblical scholars is true about Marbury v. Madison (1803) for law professors: everyone thinks s/he has something to say about it; no one really says much of anything new about it; and, in order to make sure that the "latest" person is heard, s/he tends to try to "shout" louder than everyone else to try to assure that at least someone hears, or, more cynically, that s/he gets tenure. I propose in this and the next essay to speak quietly, to build upon what I have said in numerous essays beginning with the Election of 1800 and continuing with events in 1801-02 and concluding with some comments on the background to these cases, to show how Marbury really was and is an important Supreme Court decision and that Stuart is a case that the Court tried to dispose of with as little fanfare possible. My point will be that Marbury has one brilliant dimension to it--the creation of a sphere for legal interpretation that is untouchable by the Executive Branch or Congress. But, as will be reiterated, Marbury was written at the time of lowest ebb of Supreme Court power. That it could salvage so much, when it was seemingly in a place to do so little, is the enduring contribution of Chief Justice John Marshall.

A Few Background Words

When the Supreme Court convened for its annual session on Feb. 10, 1803, it was not meeting in a vacuum. The major issue swirling around for the past year was the constitutionality of the Judiciary Act of 1802 (signed by Jefferson on April 29, 1802), which threw 16 Circuit Judges out of work (who had been appointed pursuant to the Judiciary Act of 1801), required the Supreme Court justices to resume their detested duties as circuit riders and limited the Court's term to one per year (in February). I have argued in previous essays that the three arguments that Federalists could have used to make the case for unconstitutionality of the 1802 law (1. Circuit riding goes beyond the Art. III duties of the Court/Justices; 2. Subsequent courts can't take over the work of their predecessors; 3. Judges appointed under Article III have a "vested right" in their appointment and therefore can't be "unappointed" by an act of Congress) were all gradually taken away from them as 1802 turned into 1803. In fact, by the time the Court got around to hearing arguments on Stuart v. Laird (5 US 299), a case from the Fourth Circuit which dealt with the constitutionality of the 1802 Act, late in Feb. 1803, they had no legal room in which to maneuver. They had to hold the 1802 Act constitutional.

And indeed, they did. In their early March 1803 opinion in Stuart v. Laird, delivered by Justice Paterson (Marshall, who heard the case below, recused himself), the Court held: (1) that successor courts can do the work of their predecessors; and (2) that circuit riding duties of the Justices were so much a part of the American legal landscape that long usage had led to acquiescence in the practice. But the opinion is very short; it takes no more than five minutes to read it. In my judgment the Supreme Court knew that it had no legal maneuvering room and, rather than making a "big deal" of a case which they wanted to de-emphasize (because it showed their relative powerlessness), they quickly disposed of it through a few paragraphs.

But, to be clear. It is not a "craven" decision, a judicial "caving in" to "pressure" from outside, or anything of the sort, as it is characterized by Bruce Ackerman and many other contemporary legal scholars. Those words are too inflammatory to be helpful for historical exposition. Stuart v. Laird, whose facts I would love to see laid out patiently somewhere (I have never seen it...), is a concession to political reality. No grounds existed for the Court to make any other decision than it did and still have credibility. Congress now was very strongly against the Court (Republicans had a 25-9 margin in the Senate, while in the previous Congress Republicans held only a 17-15 margin--Ohio was added in 1803, bringing with it 2 Republican Senators; the margin in the House was just as favorable to the Republicans against the Federalists), the Justices themselves had assented to returning to their circuit-riding duties, and 11 of the deposed Circuit Judges were turned down when they asked Congress to keep them on the payroll in Jan-Feb. 1803.

Turning to Marbury

So, the Court bit the bullet and handed down a bland decision in Stuart. But at the end of February 1803 the Court handed down its other decision--Marbury v. Madison (5 US 137). The remainder of this essay will give an "overview" of the decision, with the next essay focusing on what the Court actually accomplished by it.

Though the case is always styled Marbury v. Madison, there really were three other plaintiffs in the case. All of them were men whose commissions to serve as Justices of the Peace in the District of Columbia, authorized under a Feb. 27, 1801 law, were never delivered to them. They were four of among about 42 "Midnight Judges" appointed by President John Adams in the last few days of his Administration. Sometimes people use the term "Midnight Judges" to refes to the 16 Circuit Court judges appointed either on Feb. 20 or Feb. 24, 1801, but I don't think that is a proper term for them. The Circuit Judges were appointed under a different law (the Judiciary Act of 1801, signed on Feb. 13, 1801); and their commissions all went out before the end of the Adams Administration on March 4, 1801. It was the problematic character of the commissions of the hastily-appointed Justices of the Peace (and not the Circuit Judges), which were signed by Adams, sealed by John Marshall as Secretary of State but not delivered by the clerk that were at issue in Marbury. That is the first point. When you hear someone use the term "Midnight Judges," hold the feet of that person to the fire. I bet they won't be able to clarify things like this paragraph did.

Marbury's commission wasn't delivered to him. When he inquired about it during the early days of the Jefferson Administration, Secretary of State James Madison refused to deliver it to him. Marbury et al. brought a claim in the Supreme Court in December term 1801 for a writ of mandamus against Madison--requiring Madison to hand over the commission. Madison didn't show. The case was put over until the Feb. 1803 term (the next time the Court met). Oral arguments and decision were in Feb. 1803.

Overview of the Decision

Four issues are important for the Court in the decision: (1) Did Marbury have a right to the commission? (2) If he had a right to it, was there a remedy if his right to obtain it was impaired? (3) Was mandamus the proper remedy? The fourth issue will be clear in a moment. The answer to 1 is "yes." The answer to two is "yes." But the answer to 3 is "no." Mandamus isn't the proper remedy because the Supreme Court is largely an appellate body under Article III and mandamus is an original action. The Judiciary Act of 1789, permitting a mandamus at the Supreme Court, therefore conflicts with Article III of the US Constitution. When this happens, what is the result? That is where issue 4 comes in. What is the result? 4. The provision of the law allowing mandamus at the Supreme Court level is unconstitutional.

Well, what is the big deal? Plenty, as the next essay shows.

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