The Supreme Court Seizes Power - Part 2
Marshall had a problem: He knew the Court had no enforcement powers. He also was aware that Thomas Jefferson and his former boss, John Adams, were bitter political rivals and Jefferson was none too fond of Marshall; he knew if the Court issued a mandamus, ordering James Madison to deliver Marbury’s commission, the president would likely instruct Madison to ignore it. Marshall, ever the shrewd lawyer, decided to make a virtue out of necessity. He would give Jefferson what he wanted—he would not issue the mandamus—but he would do it in a way that grabbed power for the Court. He would invent judicial review.
Knowing he could not rule against the president, he needed to figure out a way to estaablish that the Court had jurisdiction to rule on such matters, and to overturn an act of Congress.
Ruling on the "constitutionality" of the law was not necessary to determine the outcome. Marshall could simply have said that with the separation of powers, and the checks and balances specifically enumerated in the Constitution, he had no power in mandamus to compel the president to do anything. But while that was true, saying that would not have served his purpose—to expand the Court's power.
In a three-part analysis, Marshall said Marbury had a right to his commission; he said Adams’ “signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete.” Secondly, Marshall opined that if Marbury had a right to the commission, then the laws of the country must provide him a remedy. It was in the third part that he got tricky. Marbury had asked the Court for a writ of mandamus to compel James Madison to deliver the commission, signed by Adams, that Madison was holding.
By misdirection that would make a slight-of-hand magician feel proud, Marshall cited a precedent that did not exist: He appears to have referred to a “case” which was a blend of several cases; even in the aggregate, the cases did not give him the precedent he was claiming. But he said it did.
The “case,” which he never named, did give him part of what he wanted; it/they also had some insurmountable problems that, if acknowledged, would have been fatal to Marshall’s cause. He took what he wanted and, like modern Supreme Court Justices, conveniently ignored the parts that were not helpful. Marshall never named the case; in all probability, it was not “a” case but a group of Court actions known as the “pension cases.” (It was customary then, as now, to name any cases you cite as precedent).
Having determined that there was a right to the commission, and the laws afforded Marbury a remedy, Marshall framed the third part of the analysis by asking, was the remedy a writ of mandamus from the Supreme Court? Marshall then went into a Machiavellian reading of the Constitution’s grant of power to the Court, finding nothing in the Constitution itself granting the Court the power to issue a writ of mandamus under its original jurisdiction. Marshall further noted that Congress has power to set rules and regulations for the Court’s appellate jurisdiction; Marshall said the Judiciary Act of 1789 giving the Court mandamus power under its original jurisdiction was unconstitutional.
The Constitution granted the Court original jurisdiction (cases filed directly in the Supreme Court) only in “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” [Const. Art.3, sec. 2]. A case filed in any court other than the Supreme Court, then appealed to the Supreme Court, comes under the Court’s appellate jurisdiction.
This was a master stroke of clever lawyering. Marshall was saying, in effect, that to avoid a writ of mandamus directed to the president, which the Court could not have enforced anyway, the Court had to find that the law passed by Congress was beyond the Congress’ power. The Constitution granted the Court no such power; therefore, a law that attempted to grant that power was in violation of the Constitution, i.e. was “unconstitutional.”
This was quite a novel idea, and more than a little disingenuous, given the federal courts, including the Supreme Court, had been accepting the authority of the Judiciary Act, and issuing mandamus under that authority, for years.
Marshall also ignored the fact that the pension "case" that he had just relied on in his mandamus discussion appeared to raise the same jurisdictional problem he faced in Marbury. Whichever mandamus action one considers, whether the one brought by Attorney General Randolph or the one brought by the veteran Chandler, each was an original motion in the Supreme Court seeking a writ of mandamus directed to an executive official. The Court accepted those cases and issued a ruling. Marshall could not have been ignorant of the fact that the jurisdictional posture in those cases seemed to be identical to the one in Marbury.
Thomas Jefferson was furious.
With the furor over that ruling, and other alleged misconduct by the Court, (Associate Justice Samuel Chase was impeached by the House of Representatives and was the subject of removal hearings in the senate) Marshall, in fear of impeachment, essentially admitted that judicial review was not necessary under our system of law. Marshall suggested that Congress could just re-pass any law the Court found unconstitutional. He also offered to abandon judicial review altogether if Congress would give its pledge not to impeach him.
The senate, by a sizeable majority, voted against Chase. However, they could not muster the two-thirds vote necessary to remove him. Marshall, seeing that they could not remove Chase, and believing now that Congress could not impeach him either, withdrew his offer to abandon judicial review.
Marshall’s legacy is an imperial Supreme Court that is now busy writing its own Constitution by issuing “interpretations” which are de facto “CONSTITUTIONAL AMENDMENTS.”
[Note: To add a comment, click on “comments” below]
Knowing he could not rule against the president, he needed to figure out a way to estaablish that the Court had jurisdiction to rule on such matters, and to overturn an act of Congress.
Ruling on the "constitutionality" of the law was not necessary to determine the outcome. Marshall could simply have said that with the separation of powers, and the checks and balances specifically enumerated in the Constitution, he had no power in mandamus to compel the president to do anything. But while that was true, saying that would not have served his purpose—to expand the Court's power.
In a three-part analysis, Marshall said Marbury had a right to his commission; he said Adams’ “signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete.” Secondly, Marshall opined that if Marbury had a right to the commission, then the laws of the country must provide him a remedy. It was in the third part that he got tricky. Marbury had asked the Court for a writ of mandamus to compel James Madison to deliver the commission, signed by Adams, that Madison was holding.
By misdirection that would make a slight-of-hand magician feel proud, Marshall cited a precedent that did not exist: He appears to have referred to a “case” which was a blend of several cases; even in the aggregate, the cases did not give him the precedent he was claiming. But he said it did.
The “case,” which he never named, did give him part of what he wanted; it/they also had some insurmountable problems that, if acknowledged, would have been fatal to Marshall’s cause. He took what he wanted and, like modern Supreme Court Justices, conveniently ignored the parts that were not helpful. Marshall never named the case; in all probability, it was not “a” case but a group of Court actions known as the “pension cases.” (It was customary then, as now, to name any cases you cite as precedent).
Having determined that there was a right to the commission, and the laws afforded Marbury a remedy, Marshall framed the third part of the analysis by asking, was the remedy a writ of mandamus from the Supreme Court? Marshall then went into a Machiavellian reading of the Constitution’s grant of power to the Court, finding nothing in the Constitution itself granting the Court the power to issue a writ of mandamus under its original jurisdiction. Marshall further noted that Congress has power to set rules and regulations for the Court’s appellate jurisdiction; Marshall said the Judiciary Act of 1789 giving the Court mandamus power under its original jurisdiction was unconstitutional.
The Constitution granted the Court original jurisdiction (cases filed directly in the Supreme Court) only in “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” [Const. Art.3, sec. 2]. A case filed in any court other than the Supreme Court, then appealed to the Supreme Court, comes under the Court’s appellate jurisdiction.
This was a master stroke of clever lawyering. Marshall was saying, in effect, that to avoid a writ of mandamus directed to the president, which the Court could not have enforced anyway, the Court had to find that the law passed by Congress was beyond the Congress’ power. The Constitution granted the Court no such power; therefore, a law that attempted to grant that power was in violation of the Constitution, i.e. was “unconstitutional.”
This was quite a novel idea, and more than a little disingenuous, given the federal courts, including the Supreme Court, had been accepting the authority of the Judiciary Act, and issuing mandamus under that authority, for years.
Marshall also ignored the fact that the pension "case" that he had just relied on in his mandamus discussion appeared to raise the same jurisdictional problem he faced in Marbury. Whichever mandamus action one considers, whether the one brought by Attorney General Randolph or the one brought by the veteran Chandler, each was an original motion in the Supreme Court seeking a writ of mandamus directed to an executive official. The Court accepted those cases and issued a ruling. Marshall could not have been ignorant of the fact that the jurisdictional posture in those cases seemed to be identical to the one in Marbury.
Thomas Jefferson was furious.
With the furor over that ruling, and other alleged misconduct by the Court, (Associate Justice Samuel Chase was impeached by the House of Representatives and was the subject of removal hearings in the senate) Marshall, in fear of impeachment, essentially admitted that judicial review was not necessary under our system of law. Marshall suggested that Congress could just re-pass any law the Court found unconstitutional. He also offered to abandon judicial review altogether if Congress would give its pledge not to impeach him.
The senate, by a sizeable majority, voted against Chase. However, they could not muster the two-thirds vote necessary to remove him. Marshall, seeing that they could not remove Chase, and believing now that Congress could not impeach him either, withdrew his offer to abandon judicial review.
Marshall’s legacy is an imperial Supreme Court that is now busy writing its own Constitution by issuing “interpretations” which are de facto “CONSTITUTIONAL AMENDMENTS.”
[Note: To add a comment, click on “comments” below]
posted by GN at 9:12 AM
1 Comments:
Before I respond to your question I need to publish a couple of disclaimers:
(1) I have been retired and out of the active practice of law for some five years now. My knowledge of Criminal Procedure may be obsolete; and
(2) My writing is mostly for my own amusement to (as my wife puts it) "keep me off the streets."
Having said that, I had a professor in law school who told our class that if someone asks you a question out of the blue the only proper response is the counter-question, "why do you ask?"
It would be impossible to answer your question without more information.
For example, if the trial was set for some relatively far off date I see no reason for the judge to deny your client's request to hire his own counsel. [I am assuming you are qualified, otherwise the judge would not have let you come in at all].
If, on the other hand, the trial is imminent and substituting lead counsel would cause an unwarranted delay, then the judge's action is certainly more understandable.
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