Robbins: The legacy of Marbury v Madison

In our continuing quest to unearth how we got here — our look at seminal cases in American law — among the pantheon of the most influential cases stands the 1803 Supreme Court case of Marbury v. Madison. 

By the way, the little “v” between names in the various cases stands for “versus” or “against” and the names on either side of the lower case “v” are the parties to the action. At a glance, Marbury v. Madison means that Marbury was opposite Madison and that Marbury was the plaintiff (or the party bringing the action) and Madison was the defendant (or the party defending himself). In this case, “Madison” was James Madison, who would go on to become this nation’s fourth president. But that was six years in the future.

Besides being important in its own right, the case has particular relevance in our own confrontational political times and dealt with what appears to have been a bit of political shenaniganism.

William Marbury was a highly successful American businessman. On March 2, 1801, then-President John Adams (our second president), named Marbury as one of 42 justices of the peace for the District of Columbia. Back in the day, a justice of the peace position was a plum.

The next day, the Senate, exercising its Article 2 Section 2 powers under the constitution (that is, to advise the president and consent to his authority — including the authority to make federal appointments), approved Marbury and the others. 

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March 3, the day the Senate approved the appointments, was Adams’ last full day in office. Acting Secretary of State, John Marshall, who would later become Chief Justice of the United States Supreme Court (a position he held for three-and-a-half decades and who is considered one the greatest — if not the greatest — justice to ever serve) failed to deliver four of the commissions, including Marbury’s. Oops.

Jefferson says ‘no’

When Thomas Jefferson took office on March 5, he ordered James Madison, his secretary of state, to withhold the four remaining commissions. Marbury sued Madison in order to obtain his commission. Technically, what Marbury did was to petition the Supreme Court for a “writ of mandamus,” a legal order, compelling Madison to show cause why Marbury should not receive his commission. 

A quick historical aside here.

Although they reconciled later in life and became fast friends, in the early 1800s, so rancorous was the relationship between Jefferson and Adams — both among the most esteemed of our founding fathers — that, rather than attend his inauguration, Adams slunk out of town in the dead of night before Jefferson was administered the oath of office to succeed him. In bizarre Hollywood-like scripting, Jefferson and Adams died on the same day; July 4, 1826 — 50 years to the day following the Declaration of Independence.

So close was their bond that Adams last words were, “Thomas Jefferson still survives.” The truth, however, was that, unbeknownst to him, Jefferson had preceded the older Adams in death by several hours.

Back to Marbury, who is known to history as one of Adams’ “Midnight Judges” — noting that he and the others were appointed by Adams just before the clock ticked over to the Jefferson administration.

Although it may seem trivial by modern lights, some have argued that Marbury v. Madison is the single most important case in Supreme Court history. It was the first Supreme Court case to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution.

Writing for the Court, Chief Justice Marshall asked and answered three questions. First, did Marbury have a right to the writ? Second, did the laws of the United States allow the courts to grant Marbury such a writ? Third, if they did, could the Supreme Court issue such a writ? 

With regard to the first question, the court held that Marbury had been properly appointed in accordance with procedures established by law, and that he, therefore, had a right to the writ. Secondly, because Marbury had a legal right to his commission, the law necessarily afforded him a remedy. 

Importantly, the Chief Justice went on to say that it was the particular responsibility of the courts to protect the rights of individuals — even against the president of the United States. Then, and most crucially, the Court, through Marshall, moved on to the third question — whether a writ of mandamus issuing from the Supreme Court was the proper remedy.

Judicial review

 It was here that Marshall addressed the question of judicial review. 

Speaking for a unanimous Court, the Chief Justice ruled that the Court could not grant the writ. Its reasoning was, however, critical. The Supreme Court simply lacked “original jurisdiction” in the matter. According to Article III of the Constitution, “original jurisdiction” applied only to cases “affecting ambassadors, other public ministers and consuls” and to cases “in which the state shall be party.” 

As a result of the court’s decision, Marbury was denied his commission which, presumably, pleased Jefferson and infuriated Adams. What is key here, however, is this: Marshall affirmed the court’s power to review acts of Congress. With its decision in Marbury, the court began its ascent as an equal branch of government — equal in power to the Congress and the president. 

Marbury v. Madison established the principle of judicial review — the power of the federal courts to declare legislative and executive acts unconstitutional.

Throughout its long history, when the court needed to affirm its legitimacy, it has cited and stood on the broad shoulders of Chief Justice Marshall’s opinion. To appreciate its relevance today, one simply needs to read the headlines. The court is the check against overreaching presidential action and the balance to zealotry. It is the GPS of constitutional navigation, ideally keeping us heading pointed in the direction of fairness, justice and democracy that the Founding Fathers intended.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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