November 2008

A Simple Little Case

by WSBA President Mark Johnson

The facts and the issue in the case before the court could not have been simpler: A man appointed to a job in government by the prior administration sued the current administration for refusing to complete his appointment. In addition, the law most germane to the court’s decision had been on the books only 15 years and the portion of that law which proved dispositive to the court’s ruling consisted of only 58 words. The court, in an apparent reflection of the simplicity of the case, issued its opinion a mere 13 days after argument.

Without the decision in the case, however, we would not have the rule of law or an independent, empowered judiciary. In fact, until the ruling in this simple little case, democracy in the United States did not truly exist because, although the United States Constitution was adopted in 1787 (ratified by the required ninth state in 1788), it was not until 1803 and the decision of the United States Supreme Court in Marbury v. Madison (1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803)), that the power of the judiciary was confirmed to be co-equal to that of the legislative and executive branches, thus ensuring an independent protection of our constitutional liberties against arbitrary abuses of power.

At issue was whether William Marbury, appointed to the position of justice of the peace for the District of Columbia by President John Adams shortly before the expiration of Adams’s term, was entitled to his commission — a commission that was being withheld by Thomas Jefferson’s secretary of state, James Madison, on Jefferson’s instructions.

The Court, Chief Justice John Marshall writing, found that the grant to the Supreme Court of original jurisdiction in mandamus petitions contained in the Judiciary Act of 1789 and on which Marbury had relied as the jurisdictional basis for his petition, was unconstitutional insofar as it purported to enlarge the original jurisdiction of the court set out in the 58 words comprising Article III, Section 2, paragraph 2 of the United States Constitution.

While the doctrine of judicial review had been discussed by others, perhaps most notably by Alexander Hamilton in Federalist No. 78, Marbury v. Madison was the first decision in which the Supreme Court clearly articulated that the courts held the power to interpret the law and that acts by the legislative and executive branches which were “repugnant” to the Constitution were void.

Marshall expressed the power of judicial review in clear and unmistakable language: “It is emphatically the province and the duty of the judicial department to say what the law is. To those who apply the rule to particular cases, must of necessity expound and interpret that rule.” (Id., 5 U.S. at 177). The Court was equally demonstrable in its articulation of the supremacy of the Constitution over conflicting legislative enactments: “It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary legislative act.” (Id., 5 U.S. at 177).

The opinion was a masterstroke of politics and democratic political theory; while it clearly articulated the power of the courts to declare acts of the other two branches of government unconstitutional, and the Constitution to be the supreme law of the land, it did so in a decision which had the effect of reducing its own jurisdiction.

Two hundred and five years after Marbury, the doctrine of judicial review which Marshall, Hamilton, and others recognized as a necessary limit on the power of the legislative and executive branches is under attack; our judges and justices are commonly criticized as being “activist” and not “strict constructionist” for doing precisely what they are constitutionally mandated to do. Since the United States Constitution does not expressly grant to the federal courts the power of judicial review, Marshall and the Marbury court were, apparently, the ultimate activist judges.

Disempowerment of the courts (ironically in the name of democracy) would have resulted in unchecked power in the two partisan branches of government. Fortunately for us, a simple little case stops it from happening. 

WSBA President Mark Johnson can be reached at 206-386-5566 or mark@¬johnsonflora.com.