Freeman

BOOK REVIEW

The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court

AUGUST 25, 2010 by KEVIN GUTZMAN

The Supreme Court’s decision in Marbury v. Madison (1803) is among the most famous in its history. Shrouded in myth and featuring a cast of historical demigods, the story of the case is a staple of biographies of the second, third, and fourth presidents, as well as Chief Justice John Marshall. Constitutional law courses commonly begin with consideration of Marshall’s opinion in the case, which supposedly established the federal courts’ power of judicial review.

In The Great Decision, journalist-lawyer Cliff Sloan and biographer David McKean offer a popular account of this seminal decision. They begin with an extensive discussion of the litigation’s background. The tale will be familiar to anyone with knowledge of American politics in the early Republic: John Adams’s administration is in its closing days. The chief justice is resigning. Multiple candidates have turned down the appointment, and Adams finally decides to appoint Marshall, his secretary of state. Thus did Republican chieftain Thomas Jefferson’s Federalist cousin come to rule the judiciary roost even as Jefferson’s party dealt the Federalists a fatal drubbing.

Marshall, finding himself both secretary of state and chief justice as the final Federalist administration drew to a close, committed the great gaffe of failing to deliver several judicial appointees’ commissions. When his successor, James Madison, found those commissions sitting on his desk, he decided (surely with Jefferson’s support) not to deliver them. That laid the ground for William Marbury’s lawsuit for possession of his commission.

Counsel for Marbury insisted that presidential nomination plus Senate confirmation entitled him to the office of D.C. justice of the peace. The administration maintained that actual delivery of the commission was necessary.

Nowadays, Marshall likely would have to recuse himself from the Supreme Court case. After all, what was really at issue was the significance of his own failure to deliver the commissions. Marshall didn’t recuse himself.

Also nowadays, a federal court would be expected to structure the explanation of its decision differently than in Marbury. As courts of limited jurisdiction, federal courts first ask whether they have jurisdiction over a particular case; if not, the case is at an end.

Marshall structured his opinion the opposite way: First he asked whether Marbury had a right to his commission, then whether there was a remedy, and only then whether the Supreme Court was constitutionally empowered to afford Marbury that remedy. By the time he got to the point in his opinion where he answered no, he had already leveled a powerful political blast at Jefferson and Madison for supposedly having denied Marbury his rightful commission.

Marshall noted that although the Judiciary Act of 1789 granted the Court power to hear suits for writs of mandamus in the first instance, such suits did not appear among the types of cases over which the Court was granted original jurisdiction by Article III. Marshall claimed that Congress did not have power to lodge original jurisdiction over other types of cases in the Supreme Court. Thus Congress had exceeded its constitutional powers in granting the Supreme Court original jurisdiction over cases like Marbury. Judicial review was born.

The authors display a worshipful attitude as they recount the endorsement of Marbury offered to them by now-retired Justice John Paul Stevens and the incorrect summary of the case’s meaning by ex-Justice Sandra Day O’Connor. Her synopsis—that Marbury makes the Supreme Court “the final arbiter of the constitutionality of all acts of government”—is the current wisdom, although it overlooks the people’s ability to amend the Constitution. For Sloan and McKean, wide-ranging judicial policymaking is a Good Thing, and whatever laid the groundwork was a Good Development. That is the message underlying the book.

That is not a new message but par for the course. The book offers no new insights or data that will add to experts’ store of knowledge; actually, it’s peppered with factual errors.

The idea that the Supreme Court is the final arbiter  is a severe betrayal of the idea of self-government underlying the American Revolution. Presidents as disparate as Thomas Jefferson, Andrew Jackson, and Abraham Lincoln contradicted it directly. In our day, it has been used to justify forced busing for racial integration, judicial imposition of tax increases, and myriad other unconstitutional social experiments.

Far from this vision of a Grand Council with the Final Say, the Revolution stood for popular sovereignty—for the People as ultimately responsible and finally empowered. While Supreme Court justices’ eyes may glisten at the mention of their self-empowering vision, America is about something far better.

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September 2010

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