Critiquing Marbury
or The infallibility of finality
Since its issuance in 1803, Chief Justice John Marshall’s opinion in Marbury v. Madison has “taken on immense historical significance as the first assertion by the Supreme Court of its right to declare acts of Congress unconstitutional,” writes historian Gordon Wood in Empire of Liberty. But when President Thomas Jefferson read Chief Justice Marshall’s decision at the time, he was big mad. He called it “gratuitous” and a “perversion of the law.”
In Marbury, Chief Justice Marshall had declared that Jefferson’s refusal to deliver the judicial commission of William Marbury had been illegal and that the court could order him to do so via a writ of mandamus. Yet the court had not issued the requested writ because the Chief Justice also found that the Judiciary Act of 1789 had unconstitutionally expanded the original jurisdiction of the Court. Since the law was unconstitutional, the Court lacked jurisdiction to issue the writ.
The Chief Justice wanted in Marbury to “demonstrate[ ] the resolve of the Supreme Court to entertain cases arising out of hotly contested issues of politics” while simultaneously avoiding a self-defeating game of chicken with the more powerful executive branch, explains Professor White:
By constructing a decision in which the Court allowed the Jefferson administration to resist delivering Marbury’s commission while at the same time rejecting its claim that nondelivery was a discretionary decision that courts could not compel the executive to perform, Marshall avoided humiliating the Jeffersonians, but also reserved the Court’s power to oversee executive acts to determine whether they were in fact “political” exercises of discretion.
In order to achieve his desired outcome, however, Marshall deployed some eyebrow-raising interpretations of the law and played fast and loose with the proper order of operations in judicial reasoning. His opinion has been controversial ever since.
Such exceptions as Congress shall make
Article III of the Constitution establishes the Supreme Court’s original jurisdiction (meaning the set of cases that may be filed directly in the court in the first instance). The Court’s original jurisdiction extends to cases involving “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” All other cases must be heard on appeal from an inferior court, “with such Exceptions, and under such Regulations as the Congress shall make.”
One plausible interpretation of this last proviso could be that Congress may expand but not contract the original jurisdiction of the Supreme Court. In this reading, an “exception” to the court’s appellate jurisdiction would necessarily mean an addition to its original jurisdiction. The original jurisdiction clause would be merely a floor, establishing the minimum original jurisdiction of the court, not a ceiling that prevented its expansion.
If that were the case, there would have been no problem with Congress expanding the Court’s original jurisdiction to include writs of mandamus in the 1789 Judiciary Act. If there was no conflict between the law and Article III, the Court would have had jurisdiction to issue the writ and Marbury could obtain his commission (assuming Jefferson would have obeyed the writ).
In Marbury, Chief Justice Marshall rejected this interpretation. He argued that the “plain import” of Article III was that “in one class of cases, [the Supreme Court’s] jurisdiction is original, and not appellate; in the other, it is appellate, and not original.” Any other interpretation would, he said, “render the clause inoperative.”
But that is not obviously the case. As just noted, the point of Article III’s original jurisdiction provision might have been to set the minimum cases of original jurisdiction without necessarily limiting them. Such a reading hardly makes the clause “inoperative.” It would prevent Congress from eliminating the Court’s original jurisdiction over cases affecting ambassadors or in which a state is a party.
In addition, Marshall’s reading results in its own puzzling corollary. If Congress can make exceptions to the Court’s appellate jurisdiction that do not correspondingly expand its original jurisdiction, that would imply that that Congress could seemingly give inferior federal courts final say over questions of federal law, rendering the Supreme Court not supreme on those questions (because they couldn’t be appealed to the high court nor could they be filed there in the first place).
Professor Amar contends, however, that the “best reading of Article III supports Marbury” because “[w]hile Article III pointedly said that Congress could make ‘Exceptions’ to the Supreme Court’s appellate jurisdiction, nowhere did it say that Congress might likewise make ‘augmentations’ to the Court’s original jurisdiction.”
As evidence of original meaning, he points to comments made during the ratification debates, including those by Alexander Hamilton, writing as Publius in the Federalist papers. Hamilton had asserted there that Supreme Court original jurisdiction would “be confined to two classes of causes, and those of a nature rarely to occur.”
In any event, the alternative interpretation would not have been useful to Marshall’s political strategy in Marbury of asserting judicial power while simultaneously avoiding a head on collision with Jefferson. If Congress could expand the Court’s Article III original jurisdiction through legislatively enacted exceptions to the appellate jurisdiction, Marshall would have been forced to throw down the gauntlet by issuing Marbury’s writ.
Advisory opinions
As I noted last time, Marshall took it upon himself to raise the question of the Court’s jurisdiction to issue the writ, a concern not raised by either of the parties. On its own, there was nothing odd about that. A court can always inquire into its own jurisdiction to hear a case, because if the court lacks subject matter jurisdiction, it may not hear the case even if both parties want it to do so.
Because subject matter jurisdiction relates to whether the court is allowed to consider the case at all, however, that portion of a judicial opinion should always come at the beginning. If the court determines that it does have jurisdiction, it may then proceed to consider the merits of the dispute and decide the outcome. If, on the other hand, the court determines that it lacks jurisdiction, that is normally the end of the opinion. The court has no authority to resolve the matter.
But Chief Justice Marshall proceeded out of order, deciding all of the substantive issues of the case and then belatedly asking whether he even had the ability to answer those questions. Obviously, he proceeded in that manner so that he could achieve his goal of rebuking Jefferson while rendering him impotent to strike back. But in the process, Marshall undercut the authority of everything he had just said about the unlawfulness of Jefferson’s refusal to deliver Marbury’s commission and the judiciary’s power to compel him to do so.
Normally, the reasoning of a judicial opinion is binding on lower courts. Thus, when a different case is later filed in a lower court with facts analogous to the higher court’s prior decision, the lower court must apply the same rule of decision. This doctrine is known as stare decisis.
But only those portions of the higher court’s reasoning that were necessary to the conclusion are binding. Digressions, off-handed comments, and irrelevant observations are not binding. Instead, these gratuitous diversions are known as dicta.
In Marbury, the outcome was that the Court lacked subject matter jurisdiction. The binding reasoning, therefore, was that the 1789 Judiciary Act was contrary to Article III and therefore void. Everything that Marshall had said about Marbury’s commission and the court’s ability to issue a writ compelling obedience of the executive branch, conversely, was nothing more than dicta.
If Marbury were to refile his case in an inferior federal court which would have original jurisdiction to issue the writ, that lower court would seemingly not be required to issue the writ on his behalf, notwithstanding the opinion of the Chief Justice of the U.S. Supreme Court.
But that wasn’t even the worst part. Because Marshall’s reasoning regarding the commission and the mandamus purported to set forth rules of law that did not actually resolve the dispute presented in the case, those portions of the opinion were arguably unconstitutional advisory opinions.
To understand the problem with advisory opinions, we need to rewind the clock back a bit back to the Washington Administration. In that era, Revolutionary France was at war with Great Britain and the United States was caught in the middle. America was nominally obligated to side with France under agreements entered into when France had come to our rescue during our own Revolution. But France’s Revolution had turned very different from ours and America’s agreements had been with the government of Louis XVIII.
Monarchist Hamilton was encouraging Washington to repudiate France and side with Great Britain. That crypto-Jacobin Jefferson meanwhile adhered to Revolutionary France. Washington sought to maintain a middle course, declaring neutrality. But the pressing issue was American shipping in the Atlantic. Britain took the position that American merchant ships bound for France could be taken as prizes and American sailors impressed into the British Navy. What were America’s rights under international law?
President Washington directed his secretary of state, Jefferson, to write a letter to John Jay, then the Chief Justice of the Supreme Court, requesting that he answer a series of questions relating to the vexing legal quandaries potentially raised by America’s neutrality in the conflict in the Atlantic.
But Chief Justice Jay demurred, writing back with the other justices:
The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to … .
Although it was not an official opinion of the Supreme Court, Chief Justice Jay’s response to Secretary Jefferson laid the foundation of the prohibition on advisory opinions. As I discussed last time, the distinguishing institutional feature of the federal judiciary is the requirement that it only decide questions presented by “cases” or “controversies,” meaning actual personal disputes between real parties who seek resolution from the court. This feature is what makes the judiciary courts, as distinguished from a legislature or an executive.
The problem with advisory opinions is that they purport to offer legal conclusions that do not resolve specific disputes between particular parties who present themselves before the tribunal. Instead, advisory opinions answer general, theoretical, or hypothetical questions. Addressing legal concerns of general application is quintessentially the province of the legislature. Thus, advisory opinions violate the separation of powers by functioning like legislation.
Which brings us back to Marbury. Because Marshall’s entire digression about the legal effect of Jefferson’s refusal to deliver Marbury’s commissions and the authority of the judiciary to compel that delivery through a writ of mandamus was totally irrelevant to the outcome, it was effectively advisory. Although there was a real dispute, the point of Marshall’s frolick wasn’t actually to help Marbury, it was to set forth some general principles about the relationship between the executive and the judiciary.
The obvious interpretation
In order to establish the principle of judicial review in Marbury, Chief Justice Marshall held that the Judiciary Act of 1789 conflicted with Article III of the Constitution because it expanded the original jurisdiction of the Supreme Court by authorizing it to issue writs on mandamus, which are not mentioned in Article III. The Act provided that:
[T]he Supreme Court … shall have … original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party … The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, … and shall have power to issue … 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 Unites States.
If the court could issue a writ of mandamus “to an officer for the delivery of a paper,” Marshall contended, that was no different than “an original action for that paper, and therefore, seems not to belong to appellate, but to original jurisdiction.”
But Marshall’s reading of the statute was strained. A writ of mandamus is a remedy, but not on its own a right giving rise to a cause of action. In other words, the writ is a form of redress sought by a wronged litigant, but it is the wrongthat creates the case or controversy in the first place, not the court’s remedy for the wrong.
Thus, a natural reading of the Judiciary Act’s mandamus provision was, as Professor White explains, that it “extend[ed] to the entire section, which would mean that mandamus was available in all cases heard by the Court, but only when the jurisdiction of the Court to hear the case was satisfied in accordance with Article III." Normally, faced with two differing but otherwise plausible interpretations of a statute, one of which is constitutional and the other of which is not, a court is obligated to construe the statute in the constitutional way. But Marshall chose to manufacture a conflict by interpreting the statute in its unconstitutional form.
Utilizing the clearly constitutional construction would have “allowed the Jefferson administration to avoid the indignity of being forced to deliver Marbury’s commission,” observes White, “but it avoided deciding the constitutionality” of the Judiciary Act. That wasn't helpful to Marshall because it “left open the question whether the Court could invalidate a congressional statute that it deemed inconsistent with the Constitution.”
Professor Amar declares absolute shenanigans, writing that the “statutory sentence that the Marbury Court flamboyantly refused to enforce did not say what the Court accused it of saying.” In the “only pre-1850 case in which the Supreme Court held a federal statute unconstitutional, it did so by faulting Congress for doing what Congress, in truth, never did.”
Although Chief Justice Marshall needed to establish the power of judicial review in Marbury, because it was nowhere explicitly mentioned in the Constitution, the concept itself was not new. Courts going back to seventeenth century England had invalidated laws that they found in conflict with higher order principles. Consequently, that aspect of the case was relatively unremarked-upon at the time, although it is the proposition for which the case is most well known today.
But one should be careful, because the power asserted by Marshall in 1803 was not identical to the concept of judicial review that we are familiar with. Over the intervening centuries, the power of judicial review has morphed into a doctrine of judicial supremacy. Today, the Supreme Court claims to be the exclusive decider of constitutional meaning, above not just the states but also the other branches of the federal government.
In Marshall’s day, however, the Supreme Court “was merely one constitutional interpreter, among a group of interpreters, operating within its own sphere,” according to Professor White. In Marbury, the Court sought to assert the full extent of its constitutional power but did not necessarily purport to occupy the whole field. That audacious claim awaited a later century.
But perhaps judicial supremacy is the natural and logical conclusion of the Supreme Court’s power of judicial review. Justice Robert Jackson would comment in the twentieth century that “[w]e are not final because we are infallible, but we are infallible only because we are final.”