Robert Barnes reports on the Chief Justice’s recent speech in Arkansas, where he offered a flawed recounting of one of the most misunderstood Supreme Court decision of all time: Marbury v. Madison.
That separation, Roberts said, is also the lesson to be learned from former chief justices John Marshall — “the greatest hero of our profession” — and Roger B. Taney — “the greatest failure.”
Marshall’s 1803 opinion in Marbury v. Madison established that it is the judiciary’s exclusive province to “say what the law is.” But the genius of Marshall’s opinion, Roberts said, was its finding that the court lacked the power to grant William Marbury’s commission as a justice of the peace.
The decision “was the epitome of restraint,” Roberts said. Marshall said “this is up to Congress to resolve.” He diffused the conflict “by staying out of it.”
Marshall’s decision in Marbury was the “epitome of restraint”? Let me tick off at least five reasons why that statement is flawed.
First, the fact that Marshall even participated in Marbury was perhaps one of the greatest breaches of judicial ethics until Abe Fortas warmed a seat. Marshall should have recused because he was the person who failed to delivery Marbury’s commission on time! Marshall later recused in Martin v. Hunter’s Lessee– because he owned land in Northern Virginia–so he was familiar with the principles of recusal.
Second, if indeed Congress could not expand the original jurisdiction of the Supreme Court, the Court should have issued a one sentence opinion dismissing the case for lack of jurisdiction. How in the world is it “the epitome of restraint” to write a lengthy opinion articulating a constitutional theory of judicial review, when the Court lacked jurisdiction. (Marshall did not create judicial review–read Federalist 78 for starters). This ought to help you understand the Chief Justice’s decision to spend 30 pages writing about the commerce clause in NFIB, only to turn around and rewrite the penalty as a tax.
Third, Marshall (most likely) misread Article III, Section 2, which provides:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Nothing in the text of the Constitution limits the Court’s original jurisdiction to those heads (ambassadors, public ministers, states as a party, etc.). The Vesting Clause of Article III vests the entire judicial power in the Supreme Court:
The judicial Power of the United States, shall be vested in one supreme Court.
I read the Exceptions Clause to suggest that Congress could remove cases from the Court’s original jurisdiction, which implies that Congress could have added to it in the first place. I admit this is not a clear cut issue, but if we are talking about “restraint,” certainly the Court could have interpreted the Constitution in a more flexible way so as not to unnecessarily invalidate the statute.
Fourth, recall that the Judiciary Act of 1789 was one of the first statutes enacted by the first Congress–many of those Representatives and Senators participated in the drafting and ratification of the Constitution. You would think, out of an act of “restraint,” such an august group would be entitled to a due measure of deference when the text of the Constitution does not compel the holding in Marbury.
Fifth, I’m not even convinced that Section 13 of the Judiciary Act of 1789 even purports to expand the Court’s original jurisdiction. Here is the relevant section:
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
I think the best way to read this provision is that in cases where the Supreme Court already had jurisdiction, it could issue writs of mandamus. The statute did not attempt to expand the Court’s original jurisdiction. Now, this wouldn’t have helped William Marbury–his appeal would still be dismissed–but the Court didn’t need to invalidate an act of the First Congress, if the text did not so clearly compel that result.
Tell me how on earth this is the “epitome of restraint”: a Justice who should have recused misreads the text of the statute and the Constitution, to invalidate an act of the First Congress, in a case that should have been dismissed for a lack of jurisdiction. These “twistifications” are enough to make your head spin. But this is whom law students venerate? Count me out.
If Marbury v. Madison was truly the epitome of restraint, it should have looked something like this:
Per curiam. Due to a lack of jurisdiction, the writ is dismissed.
Marshall, C.J., recused.