‘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.
#ad#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!
#page#All told, of the 88 citations of Marbury by justices of the Supreme Court between 1803 and 1957, only ten refer to the judicial power to invalidate laws, and all ten advance highly restrictive notions of that power, confining it to a narrow range of cases. Nowhere can we find even a suggestion that the Court is the ultimate or exclusive arbiter of all constitutional questions. If Marbury really authorized judicial supremacy, why wouldn’t someone on the Court have said so during its first century and a half?
It was in 1958 that everything changed. Over the next 48 years, there were 137 separate citations of Marbury, a number far eclipsing the total of the previous 154 years. During this period, Marbury was employed 67 times to support judicial review, 21 times to justify sweeping assertions of judicial power, and at least ten times to support the idea that the Court is the “final” or “ultimate” interpreter of the Constitution, with power to issue binding proclamations to any other agency or department of government respecting any constitutional issue — including the constitutional powers of those other departments. In the earliest of these decisions, the Little Rock school-desegregation case of 1958, the Court went so far as to suggest that its constitutional decisions were on par with the Constitution itself, claiming Marbury as its authority.
#ad#In sum, the Court’s own history shows that judicial supremacy originated neither in Marbury nor in the Constitution nor in the Marshall era. It was established by the Warren Court and developed subsequently by the Burger and Rehnquist Courts. The post-1958 Marbury myth has been used to enlarge the power of the federal judiciary beyond the role provided by the Founders in the original Constitution.
The story of how this myth was created is an interesting one. The work began in the 1870s, when a group of influential lawyers representing business interests began shopping for a good precedent for judicial supremacy. The reason they needed a better precedent was that the true original precedent for judicial supremacy was also the Supreme Court’s most embarrassing decision — the Dred Scott opinion, which allowed the extension of slavery into the American territories in the 1850s and arguably led to the Civil War.
This group of lawyers, in league with the captains of industry, opposed government regulation of economic activity. Since the state legislatures and Congress were passing regulations designed to mitigate the worst effects of the Industrial Revolution, the lawyers and their clients sought to employ the federal courts in an effort to counter the regulations. The problem was that the courts had never exercised such power, and the constitutional basis for it was doubtful at best. So the only way to get the job done was to find a precedent for judicial supremacy. But Marbury was too tame and Dred Scott was too notorious. The only thing left was to reinvent Marbury, reinterpreting its language to make it seem like an exercise in judicial supremacy.
These legal and economic elites were also believers in an ideology called Social Darwinism. They saw economic life in much the same way that Charles Darwin and his followers saw biological life — as an intense struggle for survival in which only the “fittest” deserve to survive and reproduce. Since economic regulation was usually in the interest of protecting those who could not protect themselves in this struggle, Social Darwinists believed that such laws were counterproductive in retarding economic progress, restricting the freedom of the “more fit,” and advancing the interests of those “less fit” people who constituted a “drag” on society. The Social Darwinists were ultimately successful in pressing their views on the courts, and these views held sway in the American legal community and the courts for about half a century.
Meanwhile, the opponents of the Social Darwinists, the “legal progressives” of the time, took the inaccurate history of the capitalist lawyers to heart even while opposing their social ideology. Most importantly, they accepted the falsified history of Marbury, and even went so far as to lay the blame for the dark side of the Gilded Age on John Marshall, the Supreme Court, and the Founding Fathers. Indeed, a prominent group of progressive historians falsified much of the history of the founding era, in order to make it appear that the U.S. Constitution itself had been an effort of greedy capitalists to protect their property from the masses. The political goal of the progressives was to save capitalism from itself by infusing a little socialism into the system. Ultimately, they accomplished this goal at least in part by inventing the welfare state.
As for the courts, after the 1930s and the Roosevelt Court-packing scheme, they began to move away from Social Darwinism and their earlier anti-regulatory posture, adopting instead the ideology of Progressivism — an open-ended social ideology whose main value is “change” (never mind to what) presided over by an ever-expanding administrative state. Since the arch-enemy of Progress is Tradition, it is not surprising that the courts have spent the last half-century employing judicial supremacy to undercut traditional morality.
#page#Why does all this matter? First, during the past half-century, the Court has rendered dozens of politically charged decisions with dubious legal and historical backing. Most of these decisions would be inconceivable without the enlargement of judicial power that the Marbury myth supports. Second, and more important, the separation of powers has been unbalanced by judicial supremacy. Throughout the first century and a half of our national existence, constitutional interpretation was performed continuously by all three branches of the federal government — by Congress and the president as much as by the Court.
Third, and most important, American democracy itself has been compromised. In 1992, impatient with the frequent protests over abortion outside the Supreme Court building, the Court called for an end to the national debate on the issue. Ironically, this debate had been sparked by the Court’s own 1973 decision in Roe v. Wade, one of those decisions that are inconceivable without the Marbury myth, as is every other exercise of judicial supremacy. Each of these exercises removes an important issue from the democratic process, thereby denying the people — as a people — the power and responsibility for deciding it. In an incredible fit of judicial hubris that carries judicial supremacy to the limit and turns democracy on its head, the Court declared in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) that the belief of the American people in themselves as a people under law “is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.” Perhaps Hughes was prophetic, after all, when he remarked that the Constitution is “what the Court says it is.” But don’t blame that on John Marshall.
– Robert Lowry Clinton is professor and chair of political science at Southern Illinois University, Carbondale. He was a James Madison Fellow at Princeton University in 2007–08, and is the author of Marbury v. Madison and Judicial Review and God and Man in the Law.