Marbury v. Madison and Stuart V Laird

 

Cliff Sloan and David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court
Copyright © Cliff Sloan and David McKean 2019
Public Affairs/Perseus Books
ISBN 9-781-586-4842-262

I have finished The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, which focuses on the lead-up to the decision by the Supreme Court in the case of Marbury v. Madison (the Madison in question was James Madison) and its aftermath. Theauthors case is this (at least as I read it):

Congress enacts laws. The presumption is that those laws are both Constitutional and good policy.

The President either signs into law or vetoes legislation passed by Congress. The presumption is that legislation signed into law is both Constitutional and good policy. If the President vetoes legislation passed be Congress, the President is asserting that the legislation is EITHER un-Constitutional, OR bad policy, or both. The veto message should make clear which.

Congress may vote to override the veto (which requires a supermajority), which is telling the President, again, that the legislation is both Constitutional and good policy. And it becomes law.

Note that, at least formally, Congress has the ultimate power.

There is nothing in the Constitution explicitly assigning any regarding the legitimacy of laws—constitutional? unconstitutional?)--role to the Supreme Court.

But, in what was in reality a very minor legal issue--Marbury v. Madison, the Court concluded that a law governing appointments to executive branch offices violated the Constitution and the law was therefore void. (The case involved appointments of four men to the position of justices of the peace.

(Just to be clear, this is my understanding of what I have read so far.  As I reach the end, I have to retract much of that comment on the power of the Court of that.  What the Court did was make explicit that the laws of the United States apply to the president as much as they do to the rest of us.  It's still the case tha Marbury v. Madison was a relatively minor matter.)

Now I first knew anything about Marbury v. Madison was probably in U.S. history in high school. But the underlying issue as never actually mentioned, nor was the controversy over the Constitutional action of the Court.

This sort of stuff keeps me awake at night.

The book, by the way, takes its time getting around to the legal issues. More than the first half of the book is introducing the characters and providing background. (Which gets us to p. 103 of 191, at which point the Court has rendered its decision.)  So what is the background, and what can we conclude about a Supreme Court decision that has, for over 200 years, been seen as one of the defining moments in U.S, Constitutional jurisprudence and history?

This is, actually, the story of two cases, Marbury v. Madison and Stuart v. Laird.

At issue in Marbury v. Madison was the question of whether, and to what extent, the President is bound by the law.  The background, briefly, is this.  John Adams has been defeated for re-election (in 1800), and Thomas Jefferson is to be inaugurate on 4 March 1801.  This leaves a fairly large gap between the election and the transfer of presidential authority to the incoming President.  Adams took advantage of this time lag to appoint scores of people to positions which it was the president’s responsibility to fill.  The making of these appointments continued until lite in the night of 3 March.  Among the appointments were a number of appointments to the position of justice of the peace.  One of those appointees was William Marbury (the other three men who were to receive appointments somehow have had their names dropped from history).  There were, essentially four steps to the appointment:  The president makes the appointment; the appointment is confirmed by the Senate; the president signs the appointment and affixes the Great Seal of the United States; and the letter of appointment (signed and sealed) is delivered to the appointee.  Adams completed the first three of these steps.  James Madison (as Secretary oi State, and acting on Jefferson’s instructions) did not deliver the appointment.  Marbury filed an action (a writ of mandamus) with the Supreme Court to compel the delivery.  The case was finally argued and a decision rendered more than two years later.

(A writ of mandamus is a court order requiring that a specific action be taken—in this case, the delivery of Marbury’s appointment,)

The second case, also argued and decided in1803, Stuart v. Laird, arose from the controversy surrounding the enactment in 1801 and the repeal in 1803 of the Judiciary Act of 1801.  (A good enough discussion is here: Stuart v. Laird - Wikipedia).  Briefly, the Act created a number of new judgeships (which Adams filled as promptly as he could before Jefferson was inaugurated) and allowed the Justices of the Supreme Court to cease “circuit riding.”  When, in 1803, Congress repealed the Judiciary Act of 1801, it abolished those juddgeships and required tha the Justices resume circuit riding (which they all loathed, unsurprisingly).  Stuart, who had been appointed to one of the new positions, filed suit asking that the repeal be set aside, because federal judgeships conferred lifetime appointments, that repealing the act and allowing the cancellation of the judgeships unconstitutionally deprived the newly-appointed judges of positions to which they had been lawfully appointed.

So, what happened?

In Marbury v. Madison, the Court agreed that the letter of appointment was illegally withheld (i.e., that the President of the United States was subject to the laws of the United States) but that Marbury had erred by bringing an action directly to the Supreme Court rather than to the Federal district court which would have jurisdiction.  Simply, the Court dismissed Marbury’s action—and it was, apparently, never refined in a federal district court.  But Marshall, in his decision made it quite clear that the president had violated the law, that the law was constitutional, and, had Marbury’s case been brought as an appeal from a district court, the Supreme Court would have sided with him.  The Court did not directly a constitutional issue, but made it clear that the president is as much a subject under the law as anyone.

In short, the president is not above the law.  And, as a side issue, the Supreme Court indicated that (despite there being no explicit language in the Constitution saying so) that the Curt was an equal partner (with the Congress and the President) in determining what is and is not constitutional.

In Stuart v. Laird, the Court ruled that, as the Constitution gave Congress the power to create judicial positions (including, as had already happed, changing the number of Justices on the Supreme Court, as stated in Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

(Interestingly, the Constitution does not explicitly say the appointments are lifetime; that is an inference from there being no fixed term of service stated.)

What the Court made clear was that, if Congress could create judgeships, it could also eliminate = them.  And, if the judgeship was eliminated, there was no explicit or implicit grant of continued employment for judges whose positions might be eliminated—no judgeship, no right to a position (or salary).  Again, but implicitly, the Court was claiming the right ti interpret the Constitution, and, in fact, that its interpretation was binding on the other two branches.  (Also, by making clear the authority of Congress both to create and to eliminate judgeships, it also made clear that Congress, which had eliminated circuit-riding in the 1801 Actt could, and did, in repealing the act, reinstate circuit-riding as a part of the Justices’ job.

I think the authors were right in linking these two cases.  By addressing these issues pretty much simultaneously, the Court made a fairly expansive assertion of authority, an authority that has not been challenged seriously since.