The Supreme Court Seizes Power

It all started with the Supreme Court’s unlawful grab for power in Marbury v. Madison.

The present day "news junkie" who follows the political bickering in Washington D.C. would have felt very much at home reading about John Marshall’s judicial coup d’etat foisting off judicial review on the country. The maneuver had everything to do with partisan politics and, incidentally, a little to do with how the courts would exercise power in the future.

On the first day of law school, most first-year students learn about Marbury v. Madison (1803) and the concept of “judicial review” which flows from it. (Judicial review is the process whereby the Court can review an Act of Congress and rule that the Act is “unconstitutional”).

Marbury is introduced on the opening day of law school, I suspect, for two reasons: (1) it is the concept which defines where modern courts get their power; and (2) law school professors want to begin “brainwashing” their students before their students learn enough law to say: “Wait a minute, Marshall can’t do that! He has no authority—and he has a conflict of interest."

Nothing in the Constitution gives the Supreme Court the power of judicial review. On the contrary, the men who wrote the Constitution had considered and rejected giving that power to the Court. Justice Felix Frankfurter, writing in W.Va. State Bd. of Ed. v. Barnette (1943) reminded the Court:

The framers of the federal Constitution might have chosen to assign an active share in the process of legislation to this Court. They had before them the well-known example of New York’s Council of Revision, which had been functioning since 1777. . . . But the framers of the Constitution denied such legislative powers to the federal judiciary. They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation.

In the election of 1800, Thomas Jefferson defeated John Adams; Jefferson’s party also took over Congress, inflicting on the Federalists a defeat from which they never would recover - but the Federalists weren’t done yet.

Between the time Jefferson was elected and when he was sworn into office in March, the lame-duck Federalists set out to make Jefferson’s life as miserable as possible. Adams hastily filled the vacant position of Chief Justice of the Supreme Court with one of his own men, appointing John Marshall, his Secretary of State, to fill the post. Now Marshall was both Secretary of State and Chief Justice for the remainder of Adams’ term.

The Federalists rammed legislation through Congress overhauling the court system, creating new judges and another Act creating new magistrates; Congress decreed that with the next vacancy on the Supreme Court the number of justices would be reduced from six to five. Jefferson thus would be denied the chance to appoint a Supreme Court justice whenever the next vacancy occurred.

Against this background of political shenanigans, William Marbury was among the last minute appointments to be a federal magistrate. He was confirmed and Secretary of State Marshall scurried to get Marbury’s commission signed by the president; then Marshall affixed the Great Seal of the United States and tried to get all of the commissions delivered before Jefferson was sworn in the next day. Alas, so many appointments. So little time. Marbury’s commission could not be delivered.

Jefferson ordered his new Secretary of State, James Madison, to withhold delivery. Marbury filed suit in the U.S. Supreme Court to force Madison to deliver the commission. The case was styled Marbury v. Madison.

By now, John Marshall was just the Chief Justice of the United States Supreme Court. He stopped being Secretary of State when John Adams left the presidency. But in the Marbury case, Marshall would be ruling on the legality of his own actions back when he was Secretary of State, preparing Marbury’s commission. The person (but not the office) of the Chief Justice was an eyewitness and a participant in the case before the Court! That’s about as clear a conflict of interest as any judge may ever find himself in.

To put that in a modern context, an American citizen named Yaser Hamdi was captured on the battlefield in Afghanistan. Hamdi was armed and was fighting alongside the Taliban against the U.S. and the Northern Alliance. He was brought back to the U. S., confined to a Navy brig in South Carolina, and held as an enemy combatant. Hamdi sued Secretary of Defense Donald Rumsfeld charging unlawful detention.

Let me pose a hypothetical:

What if Rumsfeld had been appointed by President Bush to be the new Chief Justice of the Supreme Court while that case was pending? Rumsfeld would now preside over the Court and rule on whether his actions, as Secretary of Defense, were proper in holding Hamdi without a judicial hearing. Would Rumsfeld’s conflict of interest be any more outrageous than Marshall’s presiding over a case about himself as Secretary of State?

If there is any difference at all, Marshall’s conflict of interest was even greater than Rumsfeld’s in my hypothetical: Marshall was already the Chief Justice of the Supreme Court at the same time he was Secretary of State performing the act that was the basis of the suit. Rumsfeld would only be ruling on the action of one of his subordinates in a very large organization, whereas Marshall ruled on a case in which his own personal actions while Secretary of State were at the heart of the suit.

But that conflict of interest is only the beginning: Marshall’s convoluted logic, and the “magical” use of highly questionable legal precedent in the Marbury case is a feat of legerdemain worthy of David Copperfield - or Houdini - as Marshall seized power for the Court AND escaped impeachment.

(To be continued)

Tomorrow: Marbury v. Madison

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