Marbury v. Madison, 5 U.S. 137 (1803) was the first important Supreme Court case in U.S. history.  This case began the transformation of the U.S. court system from a weak little sister to a powerful branch of the federal government, equal to the executive and legislative branches.  This is the story of how a petty political squabble resulted in the courts having “judicial review” over executive and legislative actions.

“Judicial Review” is the idea that the courts have the power and authority to analyze laws passed by Congress to determine if those laws are constitutional.  They ask: “Does this law comply with the intent and principles set out in the U.S. Constitution?”  Judicial review also allows the courts to review executive orders to determine if the president or one of his appointees has issued an unlawful order. A good example is the President’s decision to short circuit the 1952 steelworkers’ strike. President Truman ordered the Secretary of State to seize control of the steel mills in the U.S.  A workers’ strike was looming, and we were in the midst the Korean War.  Steel production was vitally important. The Supreme Court reviewed the executive order and ruled that it was unconstitutional for a president to seize private property in this way.  Youngstown v. Sheet and Tube v. Sawyer, 343 U.S. 579 (1952).

The Squabble Between Jefferson and Adams Leads to Judicial Review.

John Adams was a Federalist.  Thomas Jefferson belonged to the Democratic-Republican party.  In the 1800 election, Jefferson defeated the Federalists to win the presidency.  The Federalist party was panicked, afraid of losing power.  In the final days of his presidency, Adams attempted to pack the courts with Federalist supporters.  He appointed 16 new circuit judges[1] and 42 new justices of the peace for the District of Columbia.  The appointments were approved by Congress and signed by the President.  The only thing required to make them valid was delivery to the appointed person.  Adams’ Secretary of State at the time was John Marshall.  Marshall was unable to deliver all the commissions before the end of Adams’ term.

Jefferson came into office and enraged the Federalists by ordering his Secretary of State (James Madison) to hold onto the commissions that had not yet been delivered.  They would be held back, and the remaining appointees would not get their promised jobs.  One of those appointees was William Marbury.  As a reward for being a staunch Adams supporter, he was awarded a commission as justice of the peace for the District of Columbia, an important job with a 5-year term.  When he didn’t get his commission, he sued James Madison for failing to deliver the promised appointment, and he took his case directly to the U.S. Supreme Court.  How did he do that?

In 1789, Congress passed a law saying that if all a person wanted was a “writ of mandamus,”[2] that person could go directly to the Supreme Court.

The Legal Issues in the Case.

For Marbury’s lawyers, the issue was the validity of his appointment with or without delivery of the commission.  John Marshall, the author of the opinion, saw three legal issues for the Court to decide.  Issue No.1:  Did Marbury have a right to the writ of mandamus he wanted?  (That would be a court order to Madison directing him to deliver the commission.)  Issue No. 2:  Did the law allow the courts to give Marbury a remedy by issuing this writ of mandamus?  Issue No. 3:  If the law allowed the courts to issue a writ, could the Supreme Court issue it?

Ruling of the Court.

The ruling on the first issue was yes.  Marbury had been duly appointed in accordance with the law and had a right to a writ of mandamus.  On the second issue, Marshall ruled that because Marbury had a right to the writ, the law was required to give him a remedy.  The concept of judicial review came into play with the third issue – could the Supreme Court issue the writ?  The Court ruled that the Supreme Court did not have the power to issue the writ.  It held that the portion of the 1789 Judiciary Act giving the Supreme Court authority to hear cases of original jurisdiction for writs of mandamus was unconstitutional.

Analysis of the Court’s Holding

Marbury’s lawyers argued that delivery of the commission was a mere formality that was not legally required to make the appointment valid.  If delivery was required, then the Court must order Madison to deliver the commission.

In analyzing the first issue, Marshall scolded President Jefferson.  He basically told Jefferson he had failed his duty as leader of the nation by withholding a legally executed commission. Marbury had a right to his commission, signed by President Adams and endorsed by the Senate.  He reasoned that because the present administration had wronged Marbury, he had a right to a legal remedy in the courts.  He had a right to sue Secretary of State Madison. 

Now, we get to issue No. 3.  Even though he had a right to sue for his commission, Marbury did not have a right to go directly to the Supreme Court.  The U.S. Constitution sets out exactly what type of case may be brought to the Supreme Court.  Article III of the Constitution gives the Court original jurisdiction[3] in the following types of cases only:  cases involving ambassadors, public ministers and consuls, and in cases where the states are the parties.

When Congress passed the 1789 Judiciary Act and included a provision giving the Supreme Court original jurisdiction for writs of mandamus, it exceeded its authority.  That part of the 1789 Act was in conflict with the language and intent of the Constitution.  Therefore, it was unconstitutional and void.  Marshall argued that it was the duty of the Court to uphold the Constitution and strike down any conflicting laws.

At the time this case was decided, the U.S. Supreme Court had six members rather than the nine we have today.  Two members of the Court excused themselves from participating.  The remaining four were unanimous in their decision.  An interesting side note – why didn’t Marshall recuse himself from the case?  After all, he was Adams’ Secretary of State and the person responsible for getting these commissions delivered.  Yet, he chose to not only participate, but to write the opinion.  No one knows.  Curiously, not one person criticizing this unpopular case ever complained about Marshall deciding the case and writing the opinion.


At that time, the Supreme Court’s decision in Marbury v. Madison was widely criticized.  Jefferson was unhappy about being publicly chastised by Marshall.  Congress was outraged that the Court had the nerve to overturn its law.  Of course, Marbury was unhappy because he never got to be justice of the peace.  By the time the ruling came down, his term was half over.  If he started again in the lower courts, his 5-year term would have expired before the case was decided.

After Marbury, the tradition of judicial review quickly became engrained in the court system.  As more constitutional issues came before the Court, the U.S. Supreme Court gained the power to become an equal third arm of the U.S. government structure.  We now had three equal branches of government, each checking the power of the other two. 



[1] In those days, most judges rode a circuit covering multiple communities rather than have a set courthouse.

[2] A writ of mandamus is an order by the court to a government official directing the official to either take a specific action or refrain from taking that action.

[3] The term original jurisdiction means that a person can sue and go directly to the Supreme Court without the case being heard in any lower court.

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