Judicial Review

1
Judicial Review

• Stuart v. Laird, Marbury v. Madison
• and the Marshall Courts Accommodation of the
  Jeffersonian Political Regime

Elderhostel September 25, 2006 Artemus
Ward Department of Political Science Northern
Illinois University
2
Judicial Review Opposition v. Accommodation

• Marbury is commonly presented as the origin of
  the story of judicial review and judicial power
  particularly as the genesis of old-regime
  Federalist opposition to the new Jeffersonian
  political regime.
• However, when viewed in a larger context, Marbury
  exemplifies the Federalist Courts capitulation
  to the Jeffersonian regime.

3
Midnight Judges

• Having lost the election of 1800, the outgoing
  lame-duck Federalists (who still controlled the
  government) packed the federal courts by creating
  judgeships and filling them with Federalists.
• One of those judges was William Marbury.
• But Marbury never received his commission even
  though he had been nominated by the president and
  confirmed by the Senate.

4
The Repeal Act of March 8, 1802

• Once they took power, the Jeffersonians reacted
  to the midnight judges by passing the Repeal Act,
  revoking the offices of judges who had been
  appointed with life tenure.
• Is this constitutional?
• The Jeffersonians also abolished the 1802 Term of
  the Supreme Court.
• In the House, impeachment proceedings began
  against Federalist District Judge John Pickering

5
Marbury v. Madison (1803)

• At the close of the Adams administration,
  Secretary of State John Marshall forgot to
  deliver a few judicial commissions.
• William Marbury sued the new Secretary of State,
  James Madison, so that Marbury could be
  commissioned and begin serving as a judge.

James Madison
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Article III and the Judiciary Act of 1789

• Article III of the Constitution specifically
  details the Supreme Courts original
  jurisdiction.
• The Judiciary Act of 1789 gave the Supreme Court
  the ability to issue writs of mandamus the
  power to order executive officials to perform
  particular duties.
• Can Congress expand the Supreme Courts original
  jurisdiction?
• Is Marbury entitled to his commission?

7
Chief Justice John Marshall

• The framers intended the Courts original
  jurisdiction to be exclusive. That is why the
  Constitution is very specific about which areas
  the Court has original jurisdiction each one is
  listed.
• As a result, the mandamus section of the
  Judiciary Act of 1789 is unconstitutional.
• Still, Marbury was commissioned as a federal
  judge the moment the president signed and sealed
  the commission. The fact that it was never
  delivered or received is irrelevant.

8
Marburys Significance

• For the first time, the Supreme Court struck down
  an act of Congress.
• Yet, by not ordering Secretary of State James
  Madison to deliver the commission, the Court was
  able to avoid a direct confrontation with the
  Jeffersonians.
• In the end, the Court had it both ways it
  established judicial review, thereby constructing
  a powerful precedent for future cases and it
  allowed the Jeffersonians to declare victory as
  they were not forced to comply with a Court order.

9
Stuart v. Laird (1803)

• The Supreme Court refused to strike down the
  Repeal Act of 1802.
• Skirting the issue of whether the Constitution
  authorized Congress to abolish the circuit
  courts, Justice William Patterson held that
  Congress had the authority to transfer a pending
  case out of the circuit court once it repealed
  the Judiciary Act of 1801.
• This narrow/technical holding allowed the Repeal
  Act to stand.

10
Impeachment Removal

• A number of Jeffersonians wanted to impeach and
  remove Federalist judges.
• The ultimate goal was to remove Chief Justice
  John Marshallthe highest Federalist
  officeholder.
• They began with Justice Samuel Chase, an
  outspoken critic of the Jeffersonians.
• In the end, Chase was impeached but escaped
  conviction and removal by the Senate.
• The survival of Chaseand therefore Marshallwas
  a direct result of the Courts accommodating
  decisions in Marbury and Laird.

Justice Samuel Chase
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Conclusion

• The Supreme Courts strength lies in its
  legitimacy in the eyes of the public and in its
  accommodation of national governing coalitions.
• The Courts rulings in Marbury and Laird
  demonstrate strategic accommodation of a new
  political regime.
• Because of their capitulation, the Court proved
  strong enough to fend off Chases impeachment and
  continue to operate in the new Jeffersonian
  political regime, which lasted until 1832.