Though, as we discussed in class, the history of judicial review in the United States cannot reasonably be reduced to "John Marshall created in in
Marbury v. Madison," the myth of
Marbury remains a persistent part of the country's political folklore. For example, David Franklin (Associate Professor of Law and Vice Deal at DePaul University) invokes
Marbury in this
article arguing that the Supreme Court should decide not to decide the health care cases by declaring that it has no jurisdiction to do so. Leaving aside the merits of the author's claims about the Court's jurisdiction in the health care cases, here is how he describes
Marbury:
More than 200 years ago, the Supreme Court handed down a decision that was destined to change the landscape of American politics and send generations of befuddled first-year law students scurrying to their legal dictionaries. Everyone knows
Marbury v. Madison as the case in which the court first asserted the power to declare acts of Congress and the president unconstitutional. What’s less well known is that the defendants in
Marbury (Secretary of State James Madison and, by extension, President Thomas Jefferson) got off on a technicality. In its first great clash with the president, the court concluded that it had no jurisdiction—no power, in other words, to award relief to the plaintiff.
Marbury promised sizzle and ended with fizzle.
But all of this was by design. John Marshall, the brilliant but unassuming chief justice, always intended to use Marbury to hand his cousin and arch-foe Jefferson a narrow legal victory while dealing him a long-lasting political blow. By lecturing Jefferson about his legal duties, Marshall put the president in his place. (Ours is “a government of laws, and not of men.”) And by laying the foundation for judicial review, Marshall carved out a prominent new place for the court. Most important, Marshall did all of this without ordering Madison or Jefferson to actually do anything. No wonder historian Robert McCloskey called Marbury “a masterwork of indirection.”
Like I told you all in class, when someone says
Marbury v. Madison, the easiest thing to do is to nod knowingly and say, "Ah yes, John Marshall, judicial review, I know it well." You are also welcome, though, to join me in my personal crusade to put
Marbury in its proper place and explain to your learned friends about the Repeal Act,
Stuart v. Laird, and ongoing politics of constructing judicial independence.
