The Marbury Myth
John Marshall's famous decision does not support judicial supremacy.


‘We are under a Constitution, but the Constitution is what the Court says it is.” These famous words of future Chief Justice Charles Evans Hughes have become a cliché for judicial supremacy — the idea that the Supreme Court is the ultimate, exclusive interpreter of the Constitution, having the final word on all matters pertaining to its meaning. And almost everyone now believes that judicial supremacy is based on Marbury v. Madison, decided by the Court in 1803. Marbury’s contemporary influence has been graphically demonstrated in recent hearings on Supreme Court nominees, each of whom has been urged to recognize Marbury’s status as a “super-duper” precedent for modern judicial supremacy. While it is true that Marbury provides a basis for judicial review — the Court’s power to invalidate laws in a limited range of cases — it provides no support whatever for judicial supremacy.

The Marbury case arose in 1801 when William Marbury and three others who had been appointed justices of the peace in the District of Columbia by John Adams, the outgoing president, failed to receive their commissions on the eve of Thomas Jefferson’s inauguration. The new administration refused delivery of the commissions. The four would-be judges sued for a writ of mandamus (a judicial order directing a government official to perform a duty assigned by law) in the Supreme Court to force Secretary of State James Madison to produce them. Political infighting developed over these and other eleventh-hour Federalist judicial appointments in the months after Jefferson assumed office. Among other things, this infighting led to congressional suspension of the Court’s 1802 term, causing Marbury’s case not to be tried until February 1803.

Before initiating the suit, at least three of the plaintiffs applied to the secretary of state and the secretary of the Senate for information regarding the commissions. None of the State Department witnesses examined at trial questioned the existence or the validity of the commissions. Attorney General Levi Lincoln, who had been acting secretary of state when Marbury first applied to the department, declined to answer questions about “what had been done with the commissions” because he felt that he “ought not to be compelled to answer any thing which might tend to criminate himself.” The reason for the attorney general’s worry was that the department’s refusal to produce the commissions arguably violated an act of Congress that required the secretary of state to record and produce copies of all civil commissions upon payment of a dime.

Failing in their application to the State Department, at least three of the plaintiffs sought aid from the Senate. On Jan. 31, 1803, the Senate considered a motion to direct the secretary of the Senate to give Marbury and the others a copy of the record of their confirmations in March 1801. After a lengthy debate, the motion was defeated by a vote of 15 to 13.

In its Marbury opinion, the Court (per Chief Justice John Marshall) ruled that Section 13 of the Judiciary Act of 1789, which authorized the Court to issue writs of mandamus in original (trial) jurisdiction to any “persons holding office under the authority of the United States,” impermissibly enlarged the Court’s jurisdiction beyond the terms of Article III of the Constitution, which restricts the Court’s trial jurisdiction to cases involving ambassadors, public ministers, consuls, or states. This meant that, although Marbury had a legal right to his commission that was violated by Madison’s failure to perform a ministerial duty, the Court could not provide the requested relief because the congressional extension of the Court’s jurisdiction was unconstitutional.

In the final pages of his Marbury opinion, Chief Justice Marshall argued that a legislative act in conflict with the Constitution is void, and then carefully restricted the Court’s power to invalidate such acts to instances in which the Court is forced to ignore either the Constitution or the statute in order to decide a particular case. The only time this situation can arise is when the constitutional and statutory provisions involved are addressed to the Court itself, as in Marbury. In other words, under Marbury’s reasoning, the Court is not entitled to “reach out” and invalidate a legislative act simply because the Court doesn’t like it, or even because the Court believes that some other agency of government has done something unconstitutional.

Thus, Marbury-style judicial review is very limited in scope. It is restricted to cases in which Congress has unconstitutionally meddled with the Court’s functions. This is surely why the case was largely ignored by courts and legal commentators as a precedent for judicial review until the late 19th century. The Court itself didn’t notice that Marbury had anything to do with judicial review until 1887, and even then it misread the case as authorizing judicial review of state law — which Marbury had nothing to do with. It was not until 1895 that the Court first cited Marbury as a precedent for judicial review of national law, despite having invalidated some 20 congressional acts by that time. Stop and think for a moment about what this means: The case that is used as the leading precedent for modern judicial supremacy was not even regarded as an instance of judicial review until 92 years after it was decided!