Judicial Review
Stuart v. Laird, Marbury v. Madison
and the Marshall Court’s Accommodation
of the Jeffersonian Political Regime
Elderhostel
September 25, 2006
Artemus Ward
Department of Political Science
Northern Illinois University
Judicial Review:
Opposition v. Accommodation
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Marbury is commonly presented as the origin
of the story of judicial review and judicial
power – particularly as the genesis of oldregime Federalist opposition to the new
Jeffersonian political regime.
However, when viewed in a larger context,
Marbury exemplifies the Federalist Court’s
capitulation to the Jeffersonian regime.
Midnight Judges
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Having lost the election of 1800,
the outgoing lame-duck
Federalists (who still controlled
the government) packed the
federal courts by creating
judgeships and filling them with
Federalists.
One of those judges was William
Marbury.
But Marbury never received his
commission even though he had
been nominated by the president
and confirmed by the Senate.
The Repeal Act of March 8, 1802
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Once they took power, the Jeffersonians reacted to the midnight judges by passing the
Repeal Act, revoking the offices of judges who had been appointed with life tenure.
Is this constitutional?
The Jeffersonians also abolished the 1802 Term of the Supreme Court.
In the House, impeachment proceedings began against Federalist District Judge John
Pickering
Marbury v. Madison (1803)
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James Madison
At the close of the Adams
administration, Secretary of
State John Marshall forgot
to deliver a few judicial
commissions.
William Marbury sued the
new Secretary of State,
James Madison, so that
Marbury could be
commissioned and begin
serving as a judge.
Article III
and the Judiciary Act of 1789
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Article III of the Constitution specifically
details the Supreme Court’s original
jurisdiction.
The Judiciary Act of 1789 gave the Supreme
Court the ability to issue writs of mandamus –
the power to order executive officials to
perform particular duties.
Can Congress expand the Supreme Court’s
original jurisdiction?
Is Marbury entitled to his commission?
Chief Justice John Marshall
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The framers intended the
Court’s original jurisdiction to
be exclusive. That is why the
Constitution is very specific
about which areas the Court
has original jurisdiction: each
one is listed.
As a result, the mandamus
section of the Judiciary Act of
1789 is unconstitutional.
Still, Marbury was
commissioned as a federal
judge the moment the president
signed and sealed the
commission. The fact that it
was never delivered or received
is irrelevant.
Marbury’s Significance
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For the first time, the Supreme Court struck
down an act of Congress.
Yet, by not ordering Secretary of State James
Madison to deliver the commission, the Court
was able to avoid a direct confrontation with the
Jeffersonians.
In the end, the Court had it both ways: it
established judicial review, thereby constructing
a powerful precedent for future cases; and it
allowed the Jeffersonians to declare victory as
they were not forced to comply with a Court
order.
Stuart v. Laird (1803)
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The Supreme Court refused to
strike down the Repeal Act of
1802.
Skirting the issue of whether the
Constitution authorized
Congress to abolish the circuit
courts, Justice William Patterson
held that Congress had the
authority to transfer a pending
case out of the circuit court once
it repealed the Judiciary Act of
1801.
This narrow/technical holding
allowed the Repeal Act to stand.
Impeachment & Removal
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A number of Jeffersonians wanted to
impeach and remove Federalist
judges.
The ultimate goal was to remove
Chief Justice John Marshall—the
highest Federalist officeholder.
They began with Justice Samuel
Chase, an outspoken critic of the
Jeffersonians.
In the end, Chase was impeached
but escaped conviction and removal
by the Senate.
The survival of Chase—and
therefore Marshall—was a direct
result of the Court’s accommodating
decisions in Marbury and Laird.
Justice Samuel Chase
Conclusion
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The Supreme Court’s strength lies in its legitimacy
in the eyes of the public and in its accommodation
of national governing coalitions.
The Court’s rulings in Marbury and Laird
demonstrate strategic accommodation of a new
political regime.
Because of their capitulation, the Court proved
strong enough to fend off Chase’s impeachment and
continue to operate in the new Jeffersonian political
regime, which lasted until 1832.