A Greatest Hit: Marbury v. Madison

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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45 Responses

  1. Francis says:

    Awesome post. Two points: First, this sentence — “The courts say what the law is, which means they say what acts of Congress are and they way what the Constitution is.” — needs editing.

    Second, since this was posted today I’m assuming you were not involved in the Metro-link train crash this morning. But my assumptions are frequently wrong. Please confirm your bodily integrity.

    It is interesting, isn’t it, to see how the Supreme Court simultaneously arrogates the power to review the constitutionality of laws and establishes a doctrine of avoidance if the going gets too tough.Report

  2. Ken S. says:

    Amazing exposition, Burt. I’ve read this story a dozen times, and I was still hanging on your every word.Report

  3. Mike Schilling says:

    The election of 1800 was really nasty. […] 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.

    Yet some people say we don’t honor our political traditions.Report

  4. Mike Schilling says:

    Wow, Roosevelt’s court-packing scheme was really a unique departure from the sacred independence of the federal judicially, wasn’t it?Report

    • The judiciary has always been a political football and politics has never been totally out of the picture. What’s impressive is the extent to which the judiciary has been able to be independent. Few nations can boast of a judiciary as independent as ours. I think it’s something worth boasting about.Report

  5. Guy says:

    I wasn’t aware that there was precedent for judicial review in the form Marshall presented it. Nice to know. Of course, it would be nicer if these sorts of things were spelled out explicitly in the constitution. Gotta be careful with that, though; I’m in a local chapter of a club that has a number of inconveniently ill-defined terms in it’s charter and a poorly thought out strict rule on bylaw amendment that prevents us from fixing the other problems. We’ve decided to take advantage of the conveniently less restrictive dissolution rules to dissolve the chapter and reform it with a fixed set of bylaws. Of course, if we do this, our assets technically revert to our parent organization. We figure we just won’t notify them of the dance we’re doing.Report

  6. Mike Schilling says:

    By the way, did Marbury pursue his suit in another court?Report

    • AFAIK, he gave up and pursued other commercial ventures. No source I’ve read discusses his fate, and it seems that if he ever did press his claim, that would have been mentioned.Report

    • Don’t know about that, but in “A History of the Office of the Justice of the Peace in the District of Columbia”, Charles Bundy writes that none of the appointees for Justice of the Peace ever received their individual commissions. President Jefferson issued a group commission for the JPs on March 16, 1801 that included most of Adams’ appointees, but not Marbury or the other three who had filed the Supreme Court suit.Report

      • morat20 in reply to Michael Cain says:

        Ah, it appears pettiness is an enduring human trait.

        I think there’s an interesting compare-and-contrast with the facts presented here, and the whole AP history kurfluffle mentioned earlier in the week.

        This? This is real history — not a sanitized fairy tale of a nation birthed from the perfect minds of our enlightened founding fathers, but a bunch of politicians fighting viciously over power, position, and conflicting visions of the future they wanted.Report

      • Mike Schilling in reply to Michael Cain says:

        And his NBA career was pretty disappointing too.Report

      • Dave in reply to Michael Cain says:


        This is real history — not a sanitized fairy tale of a nation birthed from the perfect minds of our enlightened founding fathers, but a bunch of politicians fighting viciously over power, position, and conflicting visions of the future they wanted.

        By the time Marshall wrote the opinion in McCullough v Maryland, it’s pretty clear that he forgot all of that.Report

  7. A Compromised Immune System says:

    “The election of 1800 was really nasty.”

    That’s understating the case. It’s the only election in US History to result in a Constitutional Amendment. (XII)Report

    • Chris in reply to A Compromised Immune System says:

      It’s the first of two elections to do so.Report

      • Kim in reply to Chris says:

        And only an act of God prevented there being a third one.Report

      • A Compromised Immune System in reply to Chris says:

        I disagree with your analysis, @chris . The 22nd amendment was a campaign plank Dewey dreamed up in the latter half of the 1944 campaign that could be described as an extremely cynical ploy to drum up interest in an already failed candidacy heading into an overwhelming electoral loss. It wasn’t ratified until 1951, with Dewey’s hilarious 1948 loss to Truman interceding.

        The 12th was not just proposed after the 1800 election but the states made sure to get it in place before the election of 1804. It is truly a single-election amendment.

        The interceding 1948 election is also interesting because it marks the beginning of the shift of Southern conservative party loyalties from Democratic to Republican party, with Strom Thurmond breaking from the Democrats to run as nominee from the “State’s Rights Democratic Party” (Dixiecrats) on a platform of segregation and the larger Democratic Party realizing that they could win the Presidency without having to have the southern racists in the states Thurmond carried as part of their “big tent” after all.Report

      • Kolohe in reply to Chris says:

        I don’t think they were that practical. The deep south voted for that egghead Stevenson, twice, in the subsequent elections, (except for one dude from Alabama), and mostly again for Kennedy (though JFK didn’t make big noises either way about integration during his candidacy. Despite that, he still had electoral college defections in MS and AL) Then the Democratic Party found the only way it could win the White House was to have a Southerner on the ticket (as an avatar for ‘white working class vote’ nationwide), doubled down on that in 1992, and it still didn’t quite work in 2000.

        It was only in Obama that the Dems found they could be straight up liberals and still expand the map (and even that took an extremely unpopular President in office). H Clinton v Walker will be the first successful test since FDR/Truman of the premise that a person from the ‘Democratic wing of the Democratic Party’ can win a national election.Report

      • Mike Schilling in reply to Chris says:

        Which are you saying led to that, 1940 or 1944? (I don’t think there’s a great case for the amendment being a direct result of either.)Report

      • Mike Schilling in reply to Chris says:

        The XIIth wasn’t a result of the inter-party nastiness: it was a result of almost electing the wrong guy because the original voting system had become completely broken.Report

      • Chris in reply to Chris says:

        The push for for the 22nd became a campaign issue in ’44, and was on the legislative agenda almost as soon as Roosevelt was dead.Report

      • Will Truman in reply to Chris says:

        It seems inarguable that the 22nd was a response to Roosevelt, but I think the argument is weaker that it was a response to a particular election. And even with regard to FDR, it was passed after he died and wouldn’t have applied to him anyway.

        (I support the 22nd, rather fervently, and think that states should do the same. So I may be biased in that regard.)

        I maintain the position that the 2004 election was roughly 120,000 votes or from being the co-parent (along with 2000) of a constitutional amendment.Report

  8. Kolohe says:

    Yates opinion (the SarbOx fish case) just came down, 5-4 in favor of Yates – Grouper is not a record: http://www.supremecourt.gov/opinions/14pdf/13-7451_m64o.pdf

    Notorious RBG wrote the majority opinion, joined with the Chief, Breyer, and Sotomayor. Alito wrote a concurrence, while Kagan wrote a dissent, joined with Scalia, Thomas, and Kennedy.Report

    • Kolohe in reply to Kolohe says:

      One mention of cake in the dissent, no mentions of pie in any of the opinions.Report

    • Michael Cain in reply to Kolohe says:

      Interesting. Kagan, Scalia, Kennedy, and Thomas on the side that the words mean what we think they mean. Ginsberg, Roberts, Breyer and Sotomayor on the side that Congress meant the words to mean something much more limited. Alito concurring with the latter group, but saying (at least in my interpretation) that this is a really, really special instance. Wonder if there’s any signals about King v. Burwell in this?Report

      • Ugh. My explainer for King v. Burwell has already been a massive slog, and now this: a non-standard breakdown of actual statutory interpretation techniques resulting in a 4-4-1 split of methodology, completely torpedoing my thesis that the Justices all pretty much agree on how to interpret statutes.

        I’m tempted to just give up.Report

      • Mike Schilling in reply to Michael Cain says:

        Kagan’s dissent cites Dr. Seuss. Win.Report

      • Glyph in reply to Michael Cain says:

        I’m tempted to just give up.


      • I haven’t read the opinion yet, but based on the syllabus, I think it’s entirely possible that there’s some tea leaves here, at least as to Justice Roberts. Justices Scalia and Thomas are taking a literalist view of the statute here, and we’d expect them to do the same in King, and could have probably made this same prediction the moment the Court decided to take the Yates case since they are reasonably consistent, particularly Scalia, in the way they apply textualism to statutory interpretation (I don’t think Scalia’s version of Constitutional originalism is consistent with his textualism, but that’s another issue). Justices Sotomayor – whose appointment I’m becoming convinced should be one of the highlights of the Obama era – and RBG were also pretty predictably against the government here and will predictably be for the government in King.

        The interesting votes here are Kagan’s, Roberts’, and Alito’s (Kennedy’s less than usual, except to the extent this confirms that he probably won’t be a swing vote in the King case).

        I can’t imagine Kagan voting against Obamacare. It seems like her vote here may be a symptom of her pro-Administration biases in general. However, though I’ve only skimmed her dissent so far, I think it’s hard to square the circle of taking – and indeed, actually writing – a pretty rigid textualist stance here (that even cites Dr. Seuss!), and expresses disdain for legislative history (using the phrase “for those who care about it”) with the stance she’ll need to take to rule in the government’s favor in King. From what I’ve skimmed so far, there seem to be significant swaths of the opinion that read like they were written by Justice Scalia.

        Alito’s vote is very interesting, but I’d need to read his concurrence in some depth to get an indication as to whether it may provide some hints to where he’ll go on King, and I haven’t even skimmed it yet.

        But Roberts’ vote is really interesting. Just as I think it’s hard for Kagan to square her fairly rigid textualism here with a pro-government stance in King, I think it’s probably at least as hard for Roberts to square the context-heavy approach he signed onto here with the textualism needed to rule against the government in King. And, unlike Kagan, he’s already shown that he’s very much a swing vote on Obamacare cases, so his vote here could very well be a signal of the approach he’ll take in King.

        Alito’s concurrence seems like it may take a bit of a middle approach, but I need to read it before drawing any conclusions.Report

      • Road Scholar in reply to Michael Cain says:

        Thanks Mark, for reading and interpreting something that would undoubtedly make my eyes bleed were I to attempt it.Report

      • @burt-likko , I suspect that you’re overthinking it — I believe this one will be straightforward. The four liberal justices will vote for subsidies for all. The three solid conservatives will vote against. Roberts will vote for, as this is the best outcome for large corporations. Kennedy could go either way, but I expect him to vote for subsidies rather than be on the wrong side of history; RBG’s argument the other day that Congress can’t be trusted to fix what is clearly a drafting error, even though failure to fix it will punish millions, will swing him.

        As much as I enjoy your explanations of the legal logic puzzles, King v. Burwell is not going to be one of those.Report

      • I’m probably just grumpy because the NWS bumped us from “up to eight inches of snow” to “up to twelve inches.” Now I have to decide if I should go out and do an “intermediate” shovel…Report

      • Mike Schilling in reply to Michael Cain says:

        Kagan’s full sentence is

        And legislative history, for those who care about it, puts extra icing on a cake already frosted.

        In other words, that’s on my side too. I see that as disdain not for leg. hist. per se, but for the justices who claim to care about it but didn’t bother to check it out. Anyway, how much legal philosophy can you distill from an opinion that quotes Red Fish, Blue Fish?Report

  9. Road Scholar says:

    Thanks Burt, for the explainer. I knew Marbury v. Madison basically gave us judicial review but until now that’s about all I knew about it. I really enjoy these articles from you. I learn much which makes me happy.Report

    • Very much my pleasure, @road-scholar . I try to put these in a political context; the cases were political events as well as legal ones. The image of a sputtering-mad Jefferson in the White House scaring the help with his profanity, while the diminutive James Madison, tricked out in resplendently-shiny silk knee breeches and hose, ducking while The Redheaded Boss starts throwing things and worrying about whether the discarded lit cigar is going to catch someone’s wig on fire … well, that just sort of burned itself in my mind. If it didn’t really happen in history, it should have.Report

  10. Dave says:


    One criticism might be that Marshall misinterpreted the Constitution.

    You did a good job addressing this in your own but I wanted to mention that recent scholarly research from Randy Barnett, Rob Natelson and Micheal Treanor have pretty much shut the door on that criticism. Treanor’s work is interesting because he pointed out at least 30 instances where courts invalidated not only federal laws but state laws prior to Marbury.


    • Brandon Berg in reply to Dave says:

      It seems to me that there’s a much more straightforward justification for judicial review: It’s explicitly stated in the Constitution that the Supreme Court has the authority to decide all cases arising under the Constitution. To strike down a law is to declare that they will decide any case brought before them as if the law did not exist.

      Is judicial review any more than that? Does it actually take laws off the books, or after the composition of the court changes can the current administration try enforcing it again?Report

      • Dave in reply to Brandon Berg says:

        It seems to me that there’s a much more straightforward justification for judicial review: It’s explicitly stated in the Constitution that the Supreme Court has the authority to decide all cases arising under the Constitution.

        Do you know everyone here likes to talk about the vague nature of the text? Even Article III was subject to some, ahem, odd interpretations. In the mid-19th Century, people tried to interpret that to mean that cases under the Constitution only addressed issues between the various branches of the federal government and not disputes between the federal government and the states. They were miserably wrong but still…

        Is judicial review any more than that? Does it actually take laws off the books, or after the composition of the court changes can the current administration try enforcing it again?

        The laws are null and void and can not be enforced by anyone.Report

      • Kim in reply to Brandon Berg says:

        birth certificates == berth certificates. And a judge calling recess is abandoning ship…
        *idiotic* legal arguments…Report

      • Dave in reply to Brandon Berg says:


        Seeing as I’m not fluent in kim-ese, please rephrase that in English. TYVMReport

      • Kim in reply to Brandon Berg says:

        Sovereign citizens are a royal pain in the rear.

        People seriously are still trying to make these arguments in court
        (after that rancher out west, they’re coming out of the woodwork again).
        Jury duty is never so bad as when the county runs out of money to pay you,
        and instead offers payment in the form of “food from the food pantry”.

        To quote one of the jurors: “I don’t care if I’m taking food from starving kids. I want my expired twinkies!”Report