The Background of Marbury v. Madison, First Essay

More ink has been spilled on the interpretation of the seminal case of the US Supreme Court, Marbury v. Madison, 5 US 137 (March 1803), than on probably any other issue in American law. A rather dominant strand of interpreting that case, as well as its companion issued a week later (Stuart v. Laird), stresses the "capitulation" of the Court to the forces of the Jeffersonian "revolution" sweeping over the land at the time. Sometimes the adjectives or nouns describing the Supreme Court's action are provocative: it might be a "collapse," a "retreat," a "craven" collapse, a "cowardly" retreat, or any combination of these or other adjectives or nouns. The purpose of these two essays is to lay out four factors or events from Dec. 1801-Jan. 1803 that set the context for understanding these decisions.

My thesis is this: when we savor these events, we see that the Court not only made decisions that they really had to make, but that, in the process, they salvaged a future for the Court which would eventually lead it to be able to "trump" both the White House and Congress. Thus, my thesis is that use of military metaphors such as "retreat" or "capitulation" are highly-charged and incorrect ways of seeing these times. More neutral language will aid understanding, if indeed the scholars who write on these issues are interested in that subject.

Event # 1--Ignoring the "Show Cause" Hearing in Dec. 1801

After the Jeffersonians were swept into office through the election of 1800, the lame-duck Federalist Sixth Congress passed the Judiciary Act of 1801, and John Adams signed it into law on Feb. 13, 1801. Jefferson took office on March 4, 1801, and the oath of office was administered by what one source calls "one of the two men he hated" in life--Chief Justice John Marshall, whose appointment as Chief Justice had only been confirmed late in Jan. 1801.*

[*Who was the other man whom Jefferson "hated?" What were the actual reasons for the Marshall-Jefferson hatred? Explanations I have seen to the effect that they were distant cousins and therefore hated each other, don't by themselves carry much weight. Anyone know?]

We all know by now that one of the 42 District of Columbia Justices of the Peace appointed between Feb. 27, 1801 and March 3, 1801 pursuant to the Feb. 27, 1801 Organic Act for the District of Columbia was a certain William Marbury. His commission was signed by the President; the Great Seal of the US was affixed to it by John Marshall (in his capacity of Secretary of State); but the clerk failed to deliver it to Marbury before Jefferson's term began. As Jefferson would later state, the commission was lying on a table in the Department of State when he took office. So, it was never delivered. When Marbury asked new Secretary of State James Madison for it, Madison, on Jefferson's instruction, failed to deliver it. If this isn't cheap politics, I don't know what is. But partisanship being what it was, Marbury never got his commission.

He, along with three other men whose names history has largely forgotten (Dennis Ramsay, Robert Townsend Hooe, William Harper), hired attorneys to try to get the commissions delivered so that they could assume their positions. The attorneys brought an action before the US Supreme Court, requesting that the Court order Secretary of State Madison to show cause why the commissions were never delivered. On Dec. 16, 1801, the Supreme Court, which under the Judiciary Act of 1801 had two sessions per year (June and December), sent a notice to Madison ordering him to appear before them the next day to show cause why the commisions were never delivered. The "weapon" in plaintiff's quiver was a common law action called a mandamus, literally "we order," which was an order from a Court compelling some action. Thus, if Madison didn't show convincing cause why the commissions were not delivered, the Court could issue a mandamus to Madison requiring him to deliver the commissions. All very simple in theory, but it takes a while to explain...

Jefferson Responds

Well, Jefferson ordered Madison not to show up on Dec. 17 at the Court. Thus, Madison now had two "orders" he had to obey, orders which were contradictory to each other. He, predictably, followed Jefferson's order and never showed up at the Court. The Court now was in a pickle. It, like the Pope, commanded no army, and so couldn't compel such action. So, the case didn't move forward in the December term of the Court. Then, all hell broke loose in Congress and the Judiciary Act of 1801 was repealed on March 8, 1802; the replacement Judiciary Act of 1802 was signed by Jefferson on April 29, 1802 and the Supreme Court didn't meet at all in 1802. The Marbury case would be first in line in February 1803, but no one knew this in Dec. 1801.

I have "belabored" this event because I think it gave the Supreme Court a "clear-as-a-bell" signal about the political realities in which it had to make its decisions. The basic point is that the Adminstration wasn't going to cooperate with the Court. The Court, therefore, couldn't compel anything out of the Administration. As events would show, Jefferson was going to act not simply as if the Court didn't exist but as if he could dismantle the Federalist-controlled Judiciary through impeachment actions (he commenced the first in Jan. 1803--against a Federalist judge that even embarrassed the Federalists; he would play for much higher stakes in 1804 when going after a Supreme Court Justice--Samuel Chase).

Conclusion

So, Marshall and the Court realized, beginning on Dec. 17, 1801, that the White House simply wouldn't cooperate with it. And, if anything, this lack of cooperation would become more pronounced as the Republicans consolidated their power even more. Thus, John Marshall, a remarkable political realist, though he had strong Federalist commitments, realized that he could never order the Administration to do anything. He had to craft his decisions in Marbury and Stuart, the two "big" cases of 1803, in such a way that those political realities were honored. For, if he overstepped himself and ordered the White House to do something, and the White House refused, the Court would simply have to slink back into its relatively powerless position.

That, friends, is the reality as 1801 moves to 1802. But there are three other things we should note--in the next essay.

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