492 Chapter 14Chapter 14 || The CourtsThe CourtsWashington and cases in their assigned circuit remained in place for more than 100
years, over the objections of the justices who resented having to “ride circuit” in difficult
traveling conditions.^8 Today separate judges are appointed to fill the circuit courts.
The Supreme Court had a rough start. Indeed, it seemed determined to prove
Alexander Hamilton right, that it was the weakest branch. Of the six original justices
appointed by George Washington, one declined to serve and another never showed up
for a formal session. The Court’s first sessions lasted only a few days because it did not
have much business. In fact, the Court did not decide a single case in 1791 or 1792. When
Justice Rutledge resigned in 1791 to take a state court position, two potential appointees
turned down the job in order to keep their positions in their state legislatures! Such
career decisions would be unimaginable today, when serving on the Supreme Court is
considered the pinnacle of a legal career.^9Judicial Review and Marbury v. Madison
The Court started to gain more power when John Marshall was appointed chief justice
in 1801. Marshall single-handedly transformed the Court into an equal partner in the
system of checks and balances. The most important step was the decision Marbury v.
Madison (1803), which gave the Supreme Court the power of judicial review. As noted
earlier, the framers were split on the wisdom of giving the Court the power to strike
down laws passed by Congress, and the Constitution does not explicitly address the
issue. However, historians have established that a majority of the framers, including
the most influential ones, favored judicial review (Hamilton endorsed it in some detail
in Federalist 78). Given that the Constitution did not address the issue of judicial review,
Marshall simply asserted that the Supreme Court had the power to determine when a
law was unconstitutional. As the power of judicial review has evolved, it has become
a central part of the system of checks and balances (see Chapter 2).
The facts and legal reasoning behind Marbury are worth explaining because it is
one of the most important court cases in American history. The Federalists had just
lost the election of 1800 to Thomas Jefferson and the Democratic-Republicans. In a
last-minute power grab, the Federalist-controlled lame-duck Congress gave outgoing
President Adams an opportunity to appoint 42 new justices of the peace for the
District of Columbia and Alexandria, Virginia. Adams made the appointments, and
the Senate confirmed them, but not before time ran out and the new administration
took over. The secretary of state, John Marshall (the same Marshall who had just been
confirmed as chief justice before President Adams left office), failed to ensure that
all the commissions for the new judges were delivered by midnight. When President
Jefferson assumed office, he ordered his new secretary of state, James Madison, not to
deliver the remaining commissions that had been issued by the outgoing Federalist
administration. William Marbury was one of the people who did not receive his
commission, and he asked the Supreme Court to issue an order giving him the position.
As leading figures in opposing parties, Chief Justice Marshall and President
Jefferson did not like each other. This put Marshall in a difficult position. He was
concerned that if he issued the order that Marbury wanted, giving Marbury his job,
Jefferson probably would ignore it. (Though Secretary of State Madison was technically
the other party in the lawsuit, Jefferson was calling the shots.) Given the weakness of
the Court, having such an order disregarded by the president could have been a final
blow to its position in the national government. However, if the Court did not issue the
order, it would be giving in to Jefferson despite the merits of Marbury’s case—he really
had been cheated out of his job. It appeared that the Court would lose whether it issued
the order or not.judicial review
The Supreme Court’s power to strike
down a law or an executive branch
action that it finds unconstitutional.The Supreme Court building features
the words “Equal Justice Under Law”
across the façade, as well as a statue
titled “The Contemplation of Justice.”Full_15_APT_64431_ch14_488-529.indd 492 16/11/18 1:44 PM