Nahmod Law

Teaching Marbury v. Madison

As those of us who teach constitutional law know very well, there are some conventional lessons to be learned from Marbury v. Madison, 5 U.S. 137 (1803). Among them are the following four.

First: the order in which Marshall analyzed the relevant issues so as to declare the Court’s power of judicial review against the President and Congress, while at the same time avoiding a clash with President Jefferson by ultimately holding that the Court did not have subject matter jurisdiction.

Second: the way in which Marshall could have avoided the power of judicial review issue altogether by holding that physical delivery of Marbury’s commission was required for the appointment to have any legal effect. He could have avoided the issue in another way: by plausibly interpreting the Judiciary Act of 1789 as conferring only appellate mandamus jurisdiction on the Supreme Court. He obviously did not want to do either.

Third: the introduction of the political question doctrine under which a federal court will (must) decline to exercise jurisdiction.

Fourth: the counter-majoritarian difficulty. What justifies the Supreme Court’s assertion of power to override the decisions of the politically accountable branches of the national government?

But there are, for me at least, two less conventional lessons from Marbury.

Some Additional Lessons

I emphasize the political background of Marbury. In particular I want my students to grasp that nasty politics at the national level is not a recent phenomenon, but rather goes back to the very founding. Marbury is a great example of that. The Federalists did their best to stack (pack?) the federal judiciary with Federalist judges after they lost the election and their power. Also, there was incredible political and personal animosity between Adams and Marshall (and their fellow Federalists) on the one hand and Jefferson and his followers on the other.

I also point out to my students that Marbury is one bookend for the course. The other is Bush v. Gore, a case that still sticks in my craw because of the Court’s unwarranted intervention in that highly partisan political matter. I cover Bush v. Gore at the very end of the course, but suggest to my students in the very first class that while Marbury reflects a weak and hesitant Supreme Court at the very beginning of the 19th century, Bush v. Gore reflects a triumphalist Court two centuries later.