The Great Decision

reviewed by Jeffrey L. Bleich

If, as the psalm says, we were all conceived in sin and shaped in iniquity (Psalm 51:5), then it is probably OK that our great federal judiciary was too. The greatest decision of American constitutional law and the cornerstone of all that followed turns out to be the product of unqualified judicial sins. In Marbury v. Madison there were massive conflicts of interest: Not only was the justice who wrote the opinion, Chief Justice John Marshall, a fact witness in the case, but it was his own brother's screwup that caused the controversy. There was judicial activism: The most famous part of the Court's opinion was never even raised by the parties. And there was raw political influence: Congress effectively shut down the Court for 14 months and initiated impeachment of one member, Justice Samuel Chase (dubbed "Old Bacon Face"), for his partisan Federalist politics. Yet, despite the sordid circumstances of its birth, Marbury v. Madison produced a visionary decision that likely saved the Constitution. Indeed, as Cliff Sloan and David McKean make clear in their book The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, the wisdom of the decision in Marbury came not despite its strange origins but because of the unique political and personal drama that surrounded it.

The Great Decision reminds us that at the time of the country's founding, being a Supreme Court justice was not such a great job. No one had even bothered to create a building for the Court, so it met mostly in a local hotel. Of the original members of the Court, one died in debtor's prison, one went crazy from a mysterious ringing in his ears, another left to get a "real" job on a state supreme court, and the first chief justice himself was perpetually running for governor of New York as a way to escape the Court.

However, in 1801 two events began a chain reaction that ultimately solidified the position of the Supreme Court as the head of a branch of government that was equal in power to the executive and legislative branches. That year Thomas Jefferson became president, and his estranged cousin, John Marshall, became chief justice. Although the two men shared common ancestors, charisma, and many friends, they could barely stand one another. Marshall derided Jefferson for being an aloof and dishonorable "great lama." Jefferson scorned Marshall as a hypocrite. Part of their clash was political: Jefferson, a Republican, had defeated Marshall's Federalist mentor, President John Adams, in the election of 1800. Part of it was personal: Jefferson had been engaged to, and then dumped, Marshall's mother-in-law.

Destiny and Jefferson's election set in motion the conflict between these two men that would change the course of constitutional history. Adams, fearing that Jefferson would fill the courts with Republicans, spent his waning days in office appointing federal judges. Most notably, he appointed Marshall, his then?secretary of state, to serve simultaneously as chief justice of the United States Supreme Court. But he also prepared commissions to put other Federalists in 16 new circuit court judgeships and in 42 justice-of-the-peace positions for the District of Columbia. Republicans howled helplessly about Adams's attempt to make the judiciary a "hospital for decayed politicians." On his final night as president, Adams entrusted Marshall to immediately deliver the commissions, including one for justice of the peace to a William Marbury. However, Marshall passed this task on to his younger brother James. And in a tradition of sibling screwups later upheld by Billy Carter, Roger Clinton, and Neil Bush, James just couldn't quite get his act together. Complaining that the commissions were "too heavy," he failed to deliver them in time. From this lapse, constitutional history was born.

Taking advantage of the younger Marshall's mistake, President Jefferson instructed the new secretary of state, James Madison, not to deliver Marbury's or the others' commissions. Marbury then sued Madison on a writ of mandamus in the Supreme Court to compel Madison to deliver the commission. This produced a showdown: Federalists versus Republicans, judicial branch versus executive branch and legislative branch, cousin versus mother-in-law-dumping cousin.

Sloan and McKean merrily take us through the events, with interesting tidbits about the key figures and turn-of-the-(19th)-century Washington. As the authors describe it, the showdown itself was entertainingly tortured and protracted. Congress effectively eliminated the Supreme Court's entire 1802 term by changing its schedule. Congress also enacted a law that forced the justices to ride circuit, helping ruin the health of two of the justices and making it more difficult to get any quorum. As a result, Marbury v. Madison was not heard until 1803. And even then, only five justices showed up at all, and two of them drifted in and out of the hearing. Whatever drama the oral argument might have had quickly vanished when the defendant, James Madison, refused to show up to defend himself. Instead, he insisted that this was purely an executive-branch issue and the Court had no right to interfere.

Ironically, it was only because the president and Congress were so willing to politicize the Court that Marshall was compelled to look for an option that would strengthen and protect it. Had Marshall simply focused on the outcome of the case itself to achieve some short-term political advantage, he would have faced two unattractive alternatives. Acceding to the hard-core Federalists, he could have persuaded his colleagues (especially "Old Bacon Face") to humiliate Jefferson and simply order Madison to deliver the commissions. But Marshall realized that if he did that, Madison might refuse to comply, and thereby expose the Court as being ineffectual and partisan. On the other hand, Marshall could have tried to avoid the constitutional question entirely by merely agreeing that the commissions were invalid. But that would have handed Jefferson a victory, and likely caused a mutiny by Marshall's Federalist colleagues.

Instead, Marshall saw in this moment a chance to establish a long-term principle while using the passions of the day to protect it. The chief justice posed a different question altogether: Did the Court have the power to invalidate a law passed by Congress that violates the Constitution? Specifically, he wrote that the law allowing the Supreme Court to issue mandamus writs was itself invalid because it violated the Constitution. And to protect this decision, Marshall appeased his Federalist brethren by embarrassing Jefferson in holding that (1) Courts (and not the president) had the power to decide this question, and (2) Marbury did in fact have a vested right to his commission. At the same time, to defuse Republican outrage and ensure that the Court's decision would not be ignored, he held that the Court lacked jurisdiction to issue Marbury's writ because the law granting it that power was unconstitutional. In short, he forfeited a limited power in order to establish that the Court had a much greater power.

The Great Decision is more than an entertaining read; it is an invaluable history, in part because Marbury v. Madison is not a detached piece of legal logic. At a time when Congress could actually prevent the Court from meeting, impeach justices for any reason, and ignore orders of the Court to appear, the real issue of the day was not who should occupy judicial seats, but whether those seats would even matter at all. By taking the long view and rising above partisan interests, Marbury v. Madison established the Court's power and - more emphatically - demonstrated the legitimacy of that power.

And so, like all great legal thrillers, this book ends with the lawyers winning again.

Jeffrey L. Bleich, special counsel to the president at the White House, is on a leave of absence as a litigation partner in the San Francisco office of Munger, Tolles & Olson. The views expressed are solely his own.

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