Sunday, August 1

Meditating “Marbury”

I invite my fellow progressives / leftists to please feel free to vote me off the Island for saying the following, but ... in the interest of fairness, it should be said that acting AG Matthew Whitaker is right in a certain sense about Marbury v. Madison. To be sure, Matthew Whitaker is indeed a crackpot, and his own utterances, both written and spoken, amply justify that description. But let's be fair to broken clocks: even they are right twice a day. (The full text of Marbury can be found here; a very literate, enlightening, and even-handed summary, here.) The Constitution’s Article III is rather ambiguous, not about the scope of the Supreme Court’s original jurisdiction, but about how “hard-coded” that original jurisdiction is in the Constitution. There are two questions at issue.

The first question at issue, the easier of the two, though not without its own ambiguities, is this: can the Supreme Court’s original jurisdiction be changed by an ordinary act of the Federal Legislature — Congress — or is that original jurisdiction so “hard-coded” into the Constitution as to require an Article V Amendment? Chief Justice Marshall, writing for the Court in his magisterial opinion of 1803, held the latter. The Judiciary Act of 1789 – the full text of which is here … scroll down and pay particular attention to Section 13 -- attempted to alter the Supreme Court’s original jurisdiction via mere statutory law.

The Marshall Court called “foul” and, while conceding that William  Marbury and his co-litigants had indeed been unjustly deprived of their commissions as justices of the peace, and while also affirming that the courts were the appropriate venue for Mr. Marbury & Co. to seek redress, nevertheless declined to issue a writ of mandamus directing Secretary of State James Madison to relinquish the writs because, Marshall said, the Supreme Court had no constitutional power to do so, the Judiciary Act of 1789 notwithstanding, since alterations to the Supreme Court’s original jurisdiction may not be accomplished by Congress passing an ordinary statutory law like the Judiciary Act (hereafter J-Act) of 1789. (This has the interesting consequence that, if you support an "independent Judiciary" and are opposed to "judicial activism," as conservatives like Matthew Whitaker usually style themselves, then logic compels you to support Marbury, which pretty much single-handedly established judicial independence, flashing a middle finger at the Executive, and asserting that the courts were not the mere handmaids, a la Margaret Atwood, of the other two coordinate Branches. But I digress ... ) Though Mr. Marshall does not say so, the implication clearly is that his position, and that of the Marshall Court, is that the original jurisdiction of the Supreme Court is “hard-coded” constitutionally in the sense that changes to the Supreme Court’s original jurisdiction are properly accomplished only through an Article V amendment. Consequently, any attempt to circumvent this “hard-coding” by recourse to ordinary statutory law is, literally, to make an “illegal law” – which the Marshall Court would insist is not an oxymoron. There is a much more comprehensive account of Marbury in Bruce Ackerman’s engrossing account of the epochal election of 1800 The Failure of the Founding Fathers.

The relevant constitutional text is Article III, Sec. 2, paragraph 2:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

What the J-act of 1789 attempted in Section 13 was to change the scope of sentence one of paragraph 2 relating to original jurisdiction. The appellate jurisdiction of the Supreme Court is placed under the control of Congress by sentence two and was never part of the controversy ... except in a certain nuanced sense dealt with below ... (keep reading). Rather, Mr. Marshall argued that Congress was attempting to amend Article III, Section 2, paragraph 2 through statutory law instead of by following the amendment procedure of Article V. Such an attempt is in fundamental conflict with the “supremacy clause” of Article VI:  “higher” laws can, by definition, not be changed by “lower”.

So far, so good. These are the basic issues. So far, I think I have said nothing about the arguments of the Marshall Court that Mr. Whitaker would disagree with. Where we part company is that Mr. Whitaker – and others in the “cottage industry” of anti-Marbury scholars, very many of whom, to give credit where due, are by no means crackpots, wingnuts, propeller-beanie wearers, and alt-right dingbats, but serious constitutional scholars ... this is far too serious an issue to "demagogue" – Mr. Whitaker & Co. resist the inference that Marbury conferred upon the Supreme Court the unique and plenary power to declare laws unconstitutional, therefore null and void.

But wait a minute ... let's pull back on the reins before our hermeneutical horse attains a full gallop ... let's ask the second question, actually a two-part question, i.e., questions 2a and 2b ...

Question 2a:  Are Marbury critics on sound footing when they argue that, nowhere in Marbury, did Mr. Marshall or his Court assert that the Supreme Court has, as I said above, "unique and plenary power" to declare null and void laws inconsistent with the Constitution? One of the more famous passages of the Marbury decision -- at least to avocational constitutional nerds like your Faithful  Resident Skeptic -- is Mr. Marshall's assertion that "It is emphatically the province [i.e., an area of uncontested sovereignty] and duty of the Judicial Department [i.e., the Judicial Branch of the Federal government, in particular and in context, the Supreme Court] to say what the law is" (boldface added). Now, if we are take the actual words of the as-written text at face value, as conservative originalists are always admonishing us to do, that plain-text reading seems to indicate that the Marshall Court is indeed asserting that it does have "unique and plenary power" to rule on issues of constitutionality. Others are free to entertain their own opinions, of course, but only one opinion has the force of law:  that of the Supreme Court. Period. Full stop. New paragraph. "Here endeth the lesson." The law is what the Supreme Court says it is, so argues the Marshall Court.

The Supreme Court, of course, does not have constitutional power to enforce its rulings as matters of law. That is up to the Executive Branch, whose President is required by oath to "take care that the laws be faithfully executed". But this has at times been honored in the breach, not the observance. E.g., as President Andrew Jackson is reputed to have said of the Marshall Court's decision ruling Jackson's Cherokee-resettlement policy unconstitutional in Worcester v. Georgia in 1832:  John Marshall has made his decision, now let him enforce it. But in vastly more cases, the Executive has used its power to enforce Court rulings, as in school desegregation and cross-busing of students.

Question 2b:  The answer to Question 2a being as it may, what are we to make of the seemingly innocuous sentence two of paragraph 2, i.e., the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make?  How far is one to construe that such "exceptions and ... regulations" extend? Are those "exceptions and ... regulations" quarantined strictly within the scope of sentence 2, i.e., pertaining only to the appellate jurisdiction of the Supreme Court? Or may one interpret sentence 2 as allowing "exceptions and ... regulations" to extend outside the strict context of sentence two to the original jurisdiction of the Supreme Court as described in sentence one? If the latter should prove to be the case, then there is a possibility that statutory law could change the scope of the Supreme Court's original jurisdiction, in which case Section 13 of the J-Act of 1789 is back in play, constitutionally.

If one wanted to argue for the latter construction, the Marshall Court, less than a week after the Marbury opinion was published, would seem to give credence to such a "global" interpretation of sentence two by upholding Congress' power to simply abolish judgeships by the J-Act of 1802's repeal of the J-Act of 1801 and thereby deprive duly nominated and confirmed judges of their jurisdictions, despite a "facial" violation of the "appointments" clause whereby such judges are appointed for life, subject only to "good behavior". (There is even a respectable argument to be made that Robert Mueller's appointment as Special Counsel was technically unconstitutional because the Special Counsel's Office arguably falls under the "appointments" clause, and thus would require Senate confirmation. This interpretation assumes that the Office of Special Counsel is on the same plane, constitutionally, as, e.g., ambassadors, Cabinet officers, and "other public Ministers". The general consensus seems to be that this is something of a reach. But there is enough ambiguity to render this position seriously arguable. Please pardon the digression ... ) This was the famous case of Stuart v. Laird, the "bookend" case to Marbury. To really understand one in depth you need to understand the other. But there is neither time nor space to do justice to either alone, much less both. Besides, there is a relevant political issue here:  it is a pretty safe bet that, after Marbury, the Marshall court was extending an olive branch of conciliation to the regnant Jeffersonians in an effort to avoid wholesale impeachments of Federalist Supreme Court Justices, something that actually happened in the case of Justice Samuel Chase, who was impeached -- though not convicted -- in 1804, the year after Marbury

Yes, Matthew Whitaker is indeed a broken clock who believes judges should follow a biblical paradigm of justice, who served on the board of an allegedly scam-ridden inventions-promotion company, who believed Bigfoot DNA has been recovered and that time travel to both past and future is possible, etc., etc. But on the matter of Marbury v. Madison, the broken clock is indicating a time that, while perhaps not correct, is at least arguable. No Supreme Court is going to overturn Marbury. If nothing else, the principle of stare decesis saves us. But from a purely textual standpoint, at least on the matter of Marbury, the time indicated by the clock cannot be judged categorically wrong.

James R. Cowles

FYI ... Trust me:  the above is only the most superficial, Cliff's Notes synopsis of the political, constitutional, and jurisprudential issues that cluster around Marbury v. Madison. It is by no means uncommon for law schools and graduate courses in constitutional history to spend whole quarters, whole semesters, analyzing just Marbury ... and Stuart. I have, so far, spent about 10 years doing so, off and on, on my own and still feel like I have barely scratched the surface. 

Image credits

Chief Justice John Marshall ... Henry Inman, 1832 ... Public domain
James Madison ... John Vanderlyn ... Public domain
Thomas Jefferson ... Rembrandt Peale, 1800 ... Public domain
Supreme Court justices ... Steve Petteway, Collection of the Supreme Court of the United States ... Public domain
Marbury v. Madison quote ... Flickr ... Creative Commons Attribution-Share Alike 2.0 Generic
Supreme Court building ... Ken Hammond for USDA ... Public domain

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