In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
A Greatest Hit: Marbury v. Madison
On this day in 1803, the United States Supreme Court staked out its place in the American legal and political landscape, announcing a doctrine of judicial review which, while not unprecedented, was ambitious and a political master stroke.
And having just completed a binge of the US version of House of Cards‘ first two seasons (season three starts Friday!) and seeing the opening montage including the famous statue of Marshall found on the grounds of the Supreme Court, I’m particularly primed to enjoy revisiting the subtle power of John Marshall’s principal claim to fame.
Which makes today #judicialreviewday, a day that commemorates a distinctly important feature of our polity. I’ve not a massive amount of time at my disposal these days, but following is, with only minor edits, a reprint of my former sub-blog’s Great Cases No. 1: Marbury v. Madison. Enjoy.
We care about this case because this case is the ultimate reason why anyone but a lawyer should care about what the courts do at all. The landmark case of Marbury v. Madison has as its factual background some rather dramatic political theater.
Please indulge me, dear Readers, as I paint a rather detailed tapestry, since the political landscape of the day was not quite what we take for granted now. I promise in future installments that we will not be quite so rich in facts nor focus quite so much on lawyers and judges and how they get their jobs. But that’s really what this case is all about. And for those among us who enjoy seeing political chess games – from policy wonks to Game of Thones fans – the backdrop to this case is truly as delicious as its outcome is important.
The Election of 1800 and its Aftermath
The election of 1800 was really nasty. The focus of the election was a contest between incumbent President, Federalist John Adams, and his insurgent challenger, Vice President Thomas Jefferson of the Democratic-Republican party. Accusations of all sorts of scandalous attributes like monarchialism, corruption, the solicitation of slander, sexual impropriety, atheism, and affirmative acts of treason during the recently-concluded Quasi-War with France were thrown at both candidates. Despite all the high-minded rhetoric of the Framers, negative campaigning and the two-party system had become entrenched into American political culture to stay.
In part because the Vice President was actually the President’s bitter political enemy (no Twelfth Amendment yet), Adams’ true second in command was his Secretary of State – John Marshall of Virginia, coincidentally a distant cousin of incoming President Jefferson. Marshall had secured a position for himself for after the Adams Administration was to come to an end, but hadn’t started work just yet. So Marshall continued on as Acting Secretary of State for the last two months of Adams’ Presidency, acting as a political lieutenant to Adams, and the architect of strategies intended to prolong and salvage the Federalists’ ability to exercise political power despite the results of the election. You see, Jefferson won, and he had coattails – the Democratic-Republicans took control of both houses of Congress from the Federalists.
Like politicians do, Adams and his Federalists used the four months between the election and the swearing-in (no Twentieth Amendment yet) to enable his party to hang on to some power. In this case, that means packing the courts with Federalists. The lame duck Federalist Congress passed the Judiciary Act of 1801, creating over a hundred new judgeships at the trial and appellate court level, and restricting the size of the Supreme Court from six to five Justices effective upon the next vacancy, so as to delay President Jefferson’s ability to appoint a new Justice. The new judgeships were passed out to any ostensibly-qualified Federalist loyalist in Maryland or Virginia with as much dispatch as Adams and his cronies could muster. They had to work fast, though, because March 4 was approaching. Haste, as we shall see, creates an atmosphere ripe for errors.
Time Runs Out On The Lame Duck Appointments
March 3, 1801 was Adams’ last full day as President. There were still over sixty vacancies to fill. Adams and company found fifty-eight more or less (probably less) qualified people – which is to say they found men who had been loyal Federalists. These “midnight judges” included William Marbury, a Federalist apparatchik. Marbury was appointed Justice of the Peace for the District of Columbia, which empowered him to hear the equivalent of small claims cases and preside over marriages, adoptions, and divorces.
Then as now, appointment of a Federal judge by the President was insufficient; the Senate must “advise and consent” for the appointment to be effective. Once the Senate confirmed the nominee, it was to generate a document called a “commission” bearing the President’s signature, the Senate’s seal in wax, a pretty red ribbon, and transmit it to the Secretary of State, who would then deliver the document to the new judge. Something reasonably similar to this happens to this very day, although the Secretary of State is no longer involved. In less hurried times than faced Adams, there would have been a short ceremony and maybe a party in honor of the new judge.
But the morning of March 4, 1801 saw the outgoing Federalist Senate meet and confirm the midnight appointments en bloc. The clerks generated the sealed commissions as fast as they could, and messengers took them in batches to the Secretary of State’s office for Marshall to deliver. Marbury’s commission was in a later batch thus generated. Marshall was away from his office, distributing commissions from the first batch, when the noon bell struck and Adams and all his people were out of power. The later batches of commissions sat upon what had until moments before had been his desk, now under the watchful eye of brand-new Attorney General Levi Lincoln who was watching over the office until Marshall’s successor, James Madison, could take control of the Secretary of State’s office. The commissions stayed locked in a cabinet and Madison held the key thereafter.
Sticking A Finger In Jefferson’s Eye
Marbury understood his political role – he was to use his judgeship to obstruct the Democratic-Republican agenda in any way that he could when a case was presented to him. The office also carried a reasonable amount of prestige, and it would literally take an act of Congress (impeachment) to remove him from it until his five-year term of office expired. Note: the Federalist Congress made the terms for these low-level judges five years, so that they’d hold their seats until after the election of 1804, when they hoped to unseat Jefferson and re-take the White House. So if nothing else, Marbury’s holding the position meant that Jefferson couldn’t pass out that job to one of his own cronies. And he would get a salary. So he wanted the job. And Secretary of State James Madison refused to deliver the commission and Marbury could not assume his office as a judge.
In a calculated political move engineered by Federalist party honchos, Marbury filed suit directly in the Supreme Court of the United States for an order called a “writ of mandamus” against Secretary Madison. The writ of mandamus is close enough to what we today call an “injunction,” and would have been essentially a court order compelling Madison to physically deliver the commission to Marbury. It was sort of a miscellaneous order, one that a judge could custom-craft to solve a specific problem when the law did not provide an immediate and explicit remedy.
It seems a little odd to us that Marbury would have filed suit directly in the Supreme Court, but it would not have seemed so odd to him. That’s what the First Congress had told him to do. Section 13 of the Judiciary Act of 1789 read in relevant part:
The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts … and writs of mandamus … to any courts appointed, or persons holding office, under the authority of the United States.
Secretary Madison was a “person holding office, under authority of the United States,” being a direct subordinate of the President. And what Marbury sought was a writ of mandamus against Secretary Madison. So the Judiciary Act of 1789 specifically authorized the filing of this lawsuit, directly in the Supreme Court. Keep that fact on the front burner, it’s going to be important later.
And Marbury had every reason to believe the deck was stacked in his favor. The Supreme Court was chock full of Federalist judges, and under the administration of a brand-new Chief Justice… John Marshall, himself another lame-duck appointee. Marbury and his cronies were sure that it would be a marvelous gesture to force Jefferson to pass out a political plum to a Federalist – if a court ordered Madison to deliver the commission, what would he do?
If you were playing Politics: the Home Game, you’d have to take into account that Madison was Jefferson’s right hand man. And the two of them had a plan: emasculate the courts. John Marshall could get his court to issue writs all day long, but it fell to President Jefferson to enforce them. Madison would therefore tell Marbury to go pound sand with impunity; Jefferson held the trump card of being the one who could, at his own sole discretion, ignore a court order based on his authority as President.
But this Jeffersonian stratagem confused the pawn for the king. And Marshall was more than clever enough to sacrifice a pawn in order to get to checkmate.
Ask The Right Questions, Get The Right Answers
Imagine yourself in the brand-new White House, an aide and an advisor to President Jefferson. The handsome Virginian’s shock of red hair would by this point in his life starting to turn gray. Secretary Madison, his right-hand man, would have been there too, short of stature, painfully precise in his speech, and reeking of crafty intelligence. Everyone is wearing knee-length breeches and silk ruffles and has set aside their powdered horsehair wigs. Perhaps someone partakes of tobacco, making it literally a smoke-filled room of scheming politicians. In comes the messenger bearing the opinion from the Supreme Court. “Let’s just see what Mr. Justice Marshall has served up to us,” the President says with a smile, and he breaks the seal and unfolds the opinion to spread it out on the desk. Everyone gathers round to read, or perhaps someone reads the opinion out loud instead.
Now, civil procedure was not so formalized at the time as it was now, but of course lawyers had a particular way of doing things. Marbury, through his own lawyers (the early nineteenth-century equivalents of people like Ted Olson) submitted affidavits – sworn documentary testimony describing the situation. Similar affidavits would have at least been solicited from Secretary Madison as the mode of hearing was what we would today call an “order to show cause.” In other words, the Court put the burden on Madison to offer evidence or law explaining why he should not be compelled to issue the affidavits. Whatever it was Madison submitted, the Court was not impressed, as Marshall’s opinion begins by noting that “No cause has been shown.”
It looked exactly like Marshall was preparing to steer the Court towards a showdown with the Jefferson Administration. Then Marshall makes what seems to be a nod to the fact that he was personally a significant player in the underlying events: “The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded.” At this point, Jefferson or Madison may well have snickered just a bit. “Here it comes, boys.” It would have appeared that Marshall was walking directly into the trap, and having been induced to show his fangs, Jefferson would remove them.
Marshall comes out of the starting gate by breaking down the issues he has to face into three distinct questions, which he frames thusly:
- Has the applicant [Marbury] a right to the commission he demands?
- If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
- If they do afford him a remedy, is it a mandamus issuing from this court?
If you were clever enough to be in that room with Madison and Jefferson, then you had probably had some training the law and went back to read that structure twice. Your Spidey-sense would have told you that Marshall was up to something here. Why not simply say, “The appointment was legally valid, and the Secretary is ordered to deliver the commission”? What’s with all the theory?
But rather than just issuing an order, Marshall quotes both the Judiciary Act and the Constitution. Now, to us modern folks, this seems like an entirely natural and appropriate thing to do. At that point, though, reference to the Judiciary Act of 1801 was about all that would normally have been expected. But Marshall quotes both. And he concludes that indeed, Congress passed a law creating this judgeship, the President appointed Marbury to it, the Senate confirmed the appointment, and a commission was created.
The delivery of the commission was, at that point, a purely ministerial act (indeed, the creation of the commission was also ministerial) and no governmental actor exercised discretion – autonomous decision-making – with respect to Marbury’s appointment after the Senate’s vote. Everything after that was a mechanical process. Marshall didn’t know the term or the concept, but after the Senate votes, the rest could have been done by robots because all the programming had been done already. Or as Marshall put it:
The commission being signed, the subsequent duty of the Secretary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission, and is to record it. This is not a proceeding which may be varied if the judgment of the Executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President.
So Marbury has a right to the judicial commission, he ought to be a judge. What’s more, there is indeed a remedy, and the remedy is exactly the one that Marbury sought – a writ of mandamus. “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” In other words, for every right, there is of necessity a remedy. This was not breaking new ground; Marshall cited to the much-revered Lord William Blackstone’s Commentaries on the Laws of England, then a textbook less than a generation old, and Blackstone said as much – a right without a remedy is no right at all, and the rights of the litigant are respected even by the King, who never fails to comply with those rights when adjudicated by the courts.
So Marbury had a right to the commission and the right would properly be vindicated by a judicial writ of mandamus against Secretary Madison: a writ which Madison would simply ignore, demonstrating to the world the emasculation of the lone bastion of Federalist power still running things in the Federal government. So, Mr. Justice, issue your writ and let the dice fly. And indeed, Marshall characterized that hypothetical turn of events as an “obloquy … on the jurisprudence of our country,” since delivery of the executed commission was something “which the President cannot lawfully forbid.” Up to this point, recalling the image of President Jefferson, Secretary Madison, and their cronies gathered around reading the opinion excitedly, the President’s party would have every reason to hoot and catcall, because this “obloquy” was exactly what they were being set up to do, and in so doing, they would flex their political muscles and demonstrate their dominance over the government.
The Curve Ball
Marshall proceeds to examine first “the nature of the writ,” and second the jurisdiction of the Supreme Court. Quoting Blackstone liberally, Marshall describes mandamus as an order from the court to a specific person within the government (presumably accountable to the executive, meaning the King to Blackstone or the President to Marshall), when no other specific remedy was provided for by law. Seems to fit the situation at hand. But, Marshall says, there must be limits:
The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.
Thus are the doctrines of “Executive privilege” and “political questions” birthed, giving cover to future generations of Presidents and jurists to avoid answering politically awkward questions. But wait, there’s more. Marshall then reaches the turning point of the case – he identifies a conflict between Article III of the Constitution and the wording of the Judiciary Act of 1789. The Judiciary Act, as noted above, authorizes the filing of a petition for a writ of mandamus against a Federal officer directly in the Supreme Court. Article III defines the jurisdiction of the Supreme Court as follows:
The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.
Remember, original jurisdiction means you do your initial filing in that court; appellate jurisdiction is when that court reviews a decision already made by a different court. So Marshall says that Article III limits the original jurisdiction of the Supreme Court to only those specified cases, and gives it appellate jurisdiction only in every other kind of case. The Judiciary Act of 1789 therefore was an attempt by Congress to expand the original jurisdiction of the Supreme Court. As between a statutory law and the Constitution, the Constitution prevails.
When I was in law school, my question was “Wait, isn’t the Secretary of State a ‘public minister’?” I was hardly the first person to ever ask that question. I was told that no, this refers to ambassadors or other officials from foreign nations – after all, the phrase “public ministers” is sandwiched between “ambassadors” and “consuls,” both of whom are official representatives of foreign nations. There is nary a word about that in Marshall’s decision, though, and my law professor was good enough to acknowledge that indeed, the phrase “public ministers” could easily be interpreted to include officers of the United States like the Secretary of State. So there are two reasonable interpretations of that phrase, and who gets to decide which one applies? Justice Marshall is good enough to answer the question, although he was addressing Thomas Jefferson, not a law student more than 180 years in the future:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.
Why, it’s the Supreme Court who gets to decide. And immediately thereafter comes the coup de grâce:
If two laws conflict with each other, the Courts must decide on the operation of each. [¶] So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. [¶] If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
If a law conflicts with the Constitution, the courts have the inherent power to strike that law down as void. The courts say what the law is, which means they say what acts of Congress are and
they way what the Constitution is. And when the court finds that one conflicts with the other, the Courts have both the ability and the responsibility to cancel out any act of Congress if it is contrary to the Constitution. This is now called the power of “judicial review.” Marshall applied the power of judicial review to the Judiciary Act of 1789, rendering that portion of it that enlarged the Supreme Court’s original jurisdiction no longer law.
That meant that Marbury couldn’t file suit for mandamus against Madison in the Supreme Court. He could get the mandamus, though, if he filed in a different court. He just had to start over.
Jefferson, and Madison, and likely you if you were in that room, would have been smart enough to see what just happened at this point and they likely said a few bad words. Marshall had staked out a role for himself as a wildcard, able to void nearly anything the Democratic-Republicans tried while in power, limiting his veto only on the willingness of someone (like Marbury) to bring a lawsuit challenging it, which there was certain to be in nearly every controversial case, and his ability to come up with a passably reasonable interpretation of the laws and the Constitution to justify it.
The pawn had been sacrificed. Marbury wouldn’t be walking out of the Supreme Court with a judgeship. Sure, he could get it eventually. But for right now, Marshall had set himself up to checkmate Jefferson later, on something else – if Jefferson did something that John Marshall and his Federalist colleagues on the Court decided was contrary to the Constitution, they could call the law void and appeal not just to political sentiment but to the legally-elevated Constitution instead. This was a political vulnerability that Jefferson would never be able to cover, at least not until he could pack the Supreme Court himself.
One criticism might be that Marshall misinterpreted the Constitution. The deeper criticism of the decision is that Marshall arrogated of power to the judiciary that is not found in either the text or intent of Article III – the Constitution does not provide for judicial review as implemented in the Marbury case. After all, American law was descended from British law and British law was still being cited extensively in 1804 and the parent of the American common law. British law was predicated upon the idea of absolute Parliamentary supremacy – English judges served by the King’s appointment and therefore were inferior to him, but the Parliament was superior to the King, as demonstrated by its removal of James II Stuart, and subsequent invitation to William of Orange and Mary II Stuart to jointly rule (and their acceptance of Parliament’s power to both depose their predecessor and to install them on the throne) in the 1688 Glorious Revolution.
But here, one must exonerate Marshall. The Constitution proclaims itself the supreme law of the United States, and it is inherently a judicial function to determine what the law is. And more to the point, judicial review was discussed extensively in the Constitutional Convention, with thirteen delegates speaking in favor of it, and two against. The concept was discussed in most of the state ratification conventions, with seeming unanimous agreement upon its inclusion as part of the judiciary’s power. Alexander Hamilton, in Federalist 78, explained that:
…courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
And even the anti-federalists acknowledged that this was indeed part of the Constitution as written, although they didn’t like it because it would give the courts power to do, well, exactly what Marshall did:
The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.
So everyone knew what they were getting in to when they adopted the Constitution – the courts would have the power to interpret acts of Congress and the text of the Constitution itself, and the courts would have the power to void acts of Congress when the two were found in conflict. That was part of the package, and the package was accepted and ratified. Finally, this was actually not the first time that the federal judiciary had asserted a right to strike down an act of Congress. Marshall only obliquely refers to it in the Marbury opinion, but in Hylton v. United States (1796) 3 U.S. (Dallas) 171, the Court assumed the power to review a Federal tax on carriages to determine whether it was a “direct tax” forbidden under Article I, Section 9 (no Sixteenth Amendment yet). In Hylton, the Court found the tax valid. Marshall also points to two prior federal court decisions, neither directly by the Supreme Court, in which other acts of Congress had been stricken as unconstitutional.
Marshall was right when he said that “The doctrine, therefore, now advanced is by no means a novel one.” Of course, the matter continues to be controversial, and there are those scholars, academicians and autodidacts both, who maintain that judicial review is improper in every case, that the courts lack this power and that its exercise is an erosion of the democratic process.
The Greatest of the Great Cases
Judicial review is why Marbury v. Madison is the most important of all the Great Cases. If it weren’t for Marbury, we wouldn’t care about any of the other cases because what the courts do would simply be less important. The doctrine announced in Marbury, as much as the independent election of the President, is the fundamental difference between the U.S. and the British constitutional systems. (The British have a form of judicial review but it is not nearly as robust as that described in Marbury.) As I hinted at above, the basis for other Constitutional doctrines, like the “executive privilege” cited so cynically by Richard Nixon during Watergate, and the “political question” doctrine used by successor courts to Marshall’s to duck troublesome issues, find root here as well.
Although the decision fell into immediate criticism, the principled arguments within that criticism were completely lost by the partisan gloss attached to them – amazingly, nearly every critic of the reasoning in Marbury happened to be a Jeffersonian, and nearly every defender of the reasoning in Marbury happened to be a Federalist. This may sound familiar when compared to the modern day, and there’s a reason for that. Within Marshall’s lifetime, though, the criticism had died down to background noise, and functionally everyone accepted that indeed, this was to be the role of the courts in the American constitutional system.
Jefferson’s tactic of defying the Supreme Court would only have worked if the Supreme Court had given him an order to defy. By way of Marshall’s denying Jefferson that order to defy, on a claim of judicial review, Madison and thus Jefferson, were technically the prevailing parties; they did not have to deliver the commission to Marbury. But Marshall’s concession of the immediate issuance of Marbury’s commission came at a cost – a claim to a form of judicial power Jefferson had never seriously reckoned having to address. Until his death in 1835, Marshall would be a wild card, a Constitutional and political goalie of sorts. The Supreme Court has played that role in American politics ever since. Marbury v. Madison is one of the most clever political maneuvers ever executed in U.S. history, and at the same time, the cornerstone upon which the importance of our judicial system rests.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.