Today we take for granted the Supreme Court’s power to review laws passed by Congress. It wasn’t always that way, nor is that power clearly outlined in the Constitution.
In The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, authors Cliff Sloan and David McKean cover the events leading to the most significant Supreme Court decision of all time, Marbury v. Madison, that established the Supreme Court’s power of Judicial Review over the laws of Congress and acts of the Executive.
The Constitution and the Supreme Court
Many are surprised to learn that Article III of The Constitution of the United States of America establishing “one Supreme Court” is extremely vague as to its powers. Not even the number of justices is specified and has varied over the years. While some jurisdictional specifics are mentioned such as treaties and “controversies between two or more states” what we now consider one of the major purposes of the Supreme Court, to pass judgement on the constitutionality of actions by the other two branches of government, wasn’t at all clear at the time of the drafting. Indeed, it was questionable whether the Supreme Court even functioned as a coequal branch.
Thomas Jefferson, John Adams, John Marshall, and Why They Battled
Thomas Jefferson famously termed his election “the Revolution of 1800” because it marked the first peaceful transfer of power from one party to another. The remark papers over the deep divide that had the new republic on the brink of another possibly violent revolution.
From our high school history texts and the many current references to the Founding Fathers, we might assume the drafters of the US Constitution were united in monolithically moving the great democratic experiment forward. In reality strong idealogical divisions existed as to what the new republic should look like.
George Washington, the first US President, represented no party and warned against the formation of parties in his Farewell Address. John Adams, the second president of the United States, was a Federalist, favoring a strong central government. Thomas Jefferson ran against him as a Democratic-Republican (at the time not a contradiction in terms) favoring a weaker central government and more emphasis on state and individual rights.
John Marshall was a Federalist who served as Secretary of State under Adams. At the very end of his term, Adams nominated Marshall as the third Chief Justice of what then functioned as a very weak Supreme Court. Marshall would go on to set many of the precedents still deferred to in judicial decisions (like The Marshall Trilogy that, for better or worse, forms the basis of Federal Indian Policy), but his most influential decision remains Marbury v. Madison the decision establishing judicial review.
“The Great Decision”
In their book Sloan and McKean make it clear why the Marshall Court’s finding in Marbury v. Madison represents such a “great decision.” Jefferson, among others, saw no need for judicial review, believing the Constitution gave Congress the inherent right to determine the constitutionality of its own laws. This sounds odd to us now, rather like the fox guarding the hen house. Yet the question of whether the powers the Court took upon itself may, in fact, co-opt the equality of the other two branches can be debated.(1)
Such nuanced discussions of Constitutional Law fall outside the purview of The Great Decision, a popular history relying mainly on secondary sources. Still, the authors accomplish what they set out to do, which is trace the history of the Court’s seminal decision, the controversies preceding it, and those that followed while holding the interest of the average (as in not scholarly) reader as well as those of us who know the outcome.
What made the decision “great” is Marshall’s recognition that the power of judicial review also required an affirmation of an independent judiciary. Anything less could tear the fragile young republic apart. So, in an admittedly convoluted ruling, the Court first found in favor of Marbury then went on to explain how, under the Constitution, the Supreme Court did not have the power to hear the case. This was based on Article III Section 2: “In all other cases before mentioned, the supreme Court shall have appellate Jurisdiction…” Marshall asserted that by extending to the Court the power of “original jurisdiction” in the Marbury case, Congress had given the Court a power outside the Constitution and that power could not stand.
Marbury and his Federalist supporters won an empty victory; Jefferson couldn’t complain; and the Supreme Court established its power to strike down an act of Congress.
- Cliff Sloan and David McKean, the great Decision, Jefferson, Adams, Marshall, and the Battle for the Supreme Court, Public Affairs, New York, 2009.
- (1) Akhil Reed Amar, America’s Constitution, a Biography, Random House, New York, 2005, pp. 179-180 and 209-210