Bench Memos

Marbury, Obergefell, and Unconstitutional Supreme Court Decisions–Part 2

Ever since the late nineteenth century, proponents of judicial supremacy have relied on Marbury as their legal touchstone. The Supreme Court itself first declared its own reliance on Marbury to justify judicial supremacy in Cooper v. Aaron (1958), and has done so a dozen or so times since. Marbury has thus become the primary legal foundation for the judicially controlled “living Constitution” that has effectively replaced the one established by the framers in 1787.

But the view of the Marbury case quoted above, the view that “everyone knows” (or thinks they know), is mistaken. It boils down to two major claims. The first claim is that the decision was in important respects a politically motivated response to the threat of defiance by the Jefferson administration to any order issued by the Court. The second claim, which follows straightforwardly from the first, is that since the decision was in some sense a “political” one to mask the “institutional weakness of the Court,” the legal and constitutional analyses found in the opinion should not be taken seriously. Rather, Marshall’s analyses must have been strongly colored by mere rationalizations reached on political grounds.

While it is possible that Marshall and the other justices on his Court anticipated defiance from Jefferson and his subordinates in the event of a decision in favor of Marbury, thereby demonstrating the weakness of the Court, there is no certainty about either the anticipation or the defiance. Attorney General Levi Lincoln, standing in for Madison at the trial of Marbury’s case, all but admitted that the administration had violated the law by refusing to produce Marbury’s commission in the first place. This would have been an important factor in the administration’s response to an adverse decision in the case, had such a decision occurred, for Lincoln might have been loath to recommend that his client (Madison) defy an order to obey the law.

Even if one insists on speculating about Marshall’s supposed underlying “political” motives for construing Section 13 and Article III the way he did, such motives cannot be determined with any degree of certainty, and in any case have nothing to do with the Constitution or the law. Additionally, it needs to be re-emphasized that the Marbury decision was not Marshall’s alone, but was a unanimous decision of the entire Court.

In this instance, what “everyone knows” (or thinks they know) about Marshall’s motives in Marbury has the potential to undermine efforts to mount legitimate resistance to unconstitutional Supreme Court decisions. After all, if Marbury was, in some important sense, “political,” then judicial review itself is also political—conceived in sin, if you like. So why isn’t Justice Kennedy entitled to make a politically motivated constitutional decision, if the Great Chief Justice John Marshall himself once did likewise in the most important case in American constitutional history—the case without which, it has been said, “there would be no constitutional law”?

From this perspective, Marshall’s supposed activism in Marbury effectively licenses all subsequent unwarranted decisions of the Court. Indeed, this is the real de facto justification for judicial supremacy. If judicial supremacy is simply an unwarranted “political” extension of judicial review done by the Great Chief Justice himself, then why can’t all the other constitutional “extensions” that have followed be similarly justified? The habit of regarding all constitutional decisions—especially Marbury—as “political” thus becomes a “backdoor” justification of judicial supremacy.

How ought we then to reorient our thinking? I’ll take that up in my last installment.

Robert Lowry Clinton is professor emeritus of political science at Southern Illinois University-Carbondale and author of Marbury v. Madison and Judicial Review (1989).

Robert Lowry Clinton is professor emeritus in the department of political science at Southern Illinois University Carbondale.

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