Opinion: Democracy confronts the legacy of Marbury

The Supreme Court decided Marbury v. Madison (herein Marbury) in 1803, early in Chief Justice John Marshall’s career on the Court. John Marshall (herein Marshall) is known among Constitutional scholars as the great Chief Justice; Marbury v. Madison (herein Marbury) is known as the foundation of Constitutional law. Marbury has taken on a “gloss” and a “spirit” which represents the independence of the Supreme Court and its dignity in our system of separation of powers. (Cf, Curtis Bradley, “Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,” 2024).
Lately, there have been frontal attacks on the Court, questioning not only the logic of its opinions but the legitimacy of the Court itself. This attack comes largely from Democrats and the political left, such as from Senate Majority Leader Chuck Schumer, or from presidential candidate Kamala Harris, arguing, for example, for an increase in the number of justices on the Court or for judicial term limits (the latter requiring a Constitutional amendment). These demands politicize the Court, as if the justices are mere political actors instead of judicial decision makers. Even Donald Trump has bragged that he overturned Roe v. Wade in his appointments to the Court.
The question is whether the gloss and spirit of Marbury can withstand this attack on the very essence of the Court? Will the political elite or the public follow the decision of the Court in a highly controversial matter, or see it as merely a political actor? Do we have a democracy or a republic?
The Marbury case was really quite simple. It had to do with the jurisdiction of the Court. We normally think of a three-tiered judiciary, with the lowest level being a trial court (original jurisdiction), and the top two being appellate, the absolute top being the Supreme Court. Actually, Article III of the Constitution gives the Supreme Court original jurisdiction in two instances: where a domestic state is a party, or where a foreign state is a party through its representatives. Both the domestic state and the foreign state are sovereigns.
The essence of the case is that the Congressional statute setting up the federal judiciary, the Judiciary Act of 1789, went beyond the Constitution and gave original jurisdiction to the Supreme Court in mandamus actions, i.e., where the suit wants the Court to order a governmental official to do his duty. This behavior of the Congress was deemed by the Court to be unconstitutional. This was judicial review.
William Marbury had been appointed to a judgeship by President John Adams, but his judgeship commission had not been delivered to him during that administration (interestingly, Marshall had been acting as Secretary of State then). The new administration of Thomas Jefferson refused to deliver it. Thus, Marbury brought a mandamus action against the Secretary of State, James Madison, directly before the Supreme Court in original jurisdiction pursuant to the Judiciary Act. Ultimately, the Court dismissed the suit since the jurisdiction was based on the Judiciary Act which was found to be unconstitutional. Marbury would have to follow the normal route.
Marshall reasoned that the Constitution was the supreme law based on the Supremacy Clause of Article VI. The grant of original jurisdiction to the Supreme Court in the two instances above described constituted a limitation as well as a grant; Congress could not expand it. In deciding a case, Marshall wrote: “It is emphatically the province and duty of the Judicial Branch to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each…This is the very essence of judicial duty.”
Textually, Marshall cited the Supremacy Clause to the effect that laws of Congress must be made “in Pursuance of” the Constitution.  He concluded “that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”
Efforts by the political organs to politicize the judiciary violate the gloss and spirit of Marbury that has developed over the years to be part of our governmental culture. We are a republic, with INDEPENDENT judicial review, not a pure democracy of political power. Hopefully, the legacy of Marbury will prevail.
— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at [email protected].