Marbury v. Madison

The first case I have you read, and indeed the first case most law students read, is Marbury v. Madison.  This case is largely credited with the creation of judicial review, which is the power of the US Supreme Court to review pieces of legislation passed by Congress and potentially strike them down if they are inconsistent with the US Constitution.

It is important to note that this is something of a fiction.  Eminent legal historian Philip Hamburger has traced the roots of judicial review back much further, to the days of the early colonies.  However, at the dawn of the new republic, it was unclear if the Court had the power to strike down laws passed by the democratically elected branches of government.  Marbury v. Madison answered this question.

The case involved a man, William Marbury, who was appointed to be a Justice of the Peace in Washington, DC at the end of the Adams administration.  Upon taking office, Thomas Jefferson refused to grant Marbury his commission.  He sued future President, James Madison, Jefferson’s Secretary of State, whose job it was to deliver commissions.

Specifically, Marbury asked the Court to grant him a writ of mandamus.  This writ is a an order from a court to a government official, basically ordering them to do their job.  In this case, Marbury wanted the Court to order Madison to give him his commission.  As you read the case, keep in mind the three questions posed by the Court:

1. Does Marbury have a right to his commission?
2. If so, do the laws of his country afford him a remedy?
3. If so, is that remedy a writ of mandamus from the Supreme Court?

An important note about Marbury v. Madison.  In many ways, it is an opinion that is written backwards.  In order to understand what I mean by that, you need to know that every legal opinion has two parts: 1) the ratio decidendi, the reason for decision and 2) obiter dicta, (usually just dicta), which is other statements by the Court which are not essential to the decision.  Dicta is not binding in future decisions, but is instead something said in passing by the Court.  Most of Marbury is dicta. 

Traditionally, the Court tries not to decide any more than is strictly necessary.  Thus, if they determine that a party does not have “standing” (the right to sue), it will say so up front and refuse to address the merits of the underlying claim.  In Marbury, the Court does the opposite.  They address the underlying merits before ultimately deciding that they do not have the right to hear the case, because Congress overstepped the bounds of the Constitution in passing the Judiciary Act of 1789.

The rest of the readings examine the expansion of judicial review by the Court.  As you read, ask yourself – how does the Court justify the particular exercise of judicial review?