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- [Kim] Hi, this is Kim from Kahn Academy, and today we're learning more about what I like to call "The Case of the Midnight Judges," Marbury versus Madison. This case was decided in 1803 and it established the principle of judicial review, that the Supreme Court has the power to review the constitutionality of Acts made by Congress or the President, and overturn those actions that it judges to be inconsistent with the constitution. To learn more about Marbury versus Madison I sought out the help of two experts. Michael Klarman is a legal historian and the Kirkland and Ellis Professor of Law at Harvard Law School. Kevin Walsh is a professor of law at the University if Richmond Law School. So, Professor Walsh, can you tell us a little bit about what was happening in this case? Can you set the stage? - [Kevin] Sure, you're right, the case wasn't decided until 1803, but to understand where it came from, you really have to go back to the election of 1800, and this election pitted John Adams, the incumbent, Federalist president, against his former vice president, Thomas Jefferson, the Democratic Republican. And long story short, Jefferson ended up being President, and we have skipped a lot of really interesting things there, but Jefferson ultimately won. The Federalist who controlled Congress, seeing what was happening, made a present for the incoming administration in the form of some laws that created some new judgeships. So some new federal judges, as well as some justices of the peace in the District of Columbia. And then they proceeded to stuff those offices with loyal Federalists, and these were people like William Marbury, who was granted a commission as justice of the peace in DC. - [Michael] Marbury was appointed by the Federalist President, the outgoing Federalist President, John Adams, to be a justice of the peace in Washington DC, but John Marshall, who was both Secretary of State and Chief Justice of the United States under John Adams, he didn't have a chance to deliver the commission, because these were midnight judges who were appointed almost at the last minute, as the Adams Administration was going out the door. So the commission for Marbury was still sitting on the desk of the new Secretary of State, James Madison, when the Jefferson Administration took over. And the Jeffersonians were outraged by what they saw as an effort to pack the judiciary by the outgoing administration, so they were refusing to deliver the commission. Marbury wants his commission, so he brings a lawsuit in the United States Supreme Court demanding that Secretary of State, James Madison, deliver the commission to him, and that's what leads to the case Marbury versus Madison. - [Kevin] So really, this is a case about some men trying to get the jobs that President Adams had appointed them to, but that they weren't able to get because President Jefferson and his administration refused to deliver the piece of paper entitling them to actually take the job. - [Kim] Very interesting, so this election of 1800, I think, is very significant in American history because it was the first peaceful transfer of power between two political parties. The Federalists, kind of led by John Adams, who added this stronger central government as one of their core ideals, and then the anti-Federalists, or Democratic Republicans, led by Madison and Jefferson who wanted a weaker central government, more power to the states. So I think it's one of the coolest things in American history that a political party voluntarily gave up power, like when else in the history of the world did a ruling party just say, ah, you know what, now our enemies can rule. But, there's also this political fallout from this transfer of power between parties. - [Michael] And this is the first time that Jeffersonian Republicans are gonna be able to take control of the national government, and the Federalists, the outgoing Adams Administration, are horrified by this. They think of Jefferson as an anarchist, an atheist, they accused him during the campaign of being a miscegenator. They allege, it turns out correctly, that he sleeps with his slaves. They allege that in New England he'll be stealing their Bibles if elected, and the Jeffersonians don't think much better of John Adams. They think he wants to be a king. He nearly got the country into an unnecessary war with France. So there's tremendous political animosity. Neither side really sees the opposite side as the loyal political opposition, and then there's personal acrimony as well. Thomas Jefferson and John Marshall, both from Virginia, are distant cousins. They hate each other. John Marshall certainly didn't think Jefferson ought to be elected President in 1800, and Jefferson thinks that John Marshall as chief justice is trying to undermine the federal republic through his nationalist rulings on the Supreme Court. - [Kevin] Well, it wasn't a pretty transfer. John Adams left in a huff the morning that Jefferson was going to be inaugurated, but it was, as you say, it was a peaceful transition. But the thing is, is a lot of the issues that come with transferring power from one political party to another, these were new issues for the country. And understandably, the Jefferson Administration resented the Federalist's attempt to put their loyalists into the judiciary. - [Michael] The Jeffersonians have won the presidential election, they've won the congressional elections by even more. The only branch of the federal government still controlled by the Federalists is the judiciary, and now they're packing the judiciary. They're creating 16 new federal court of appeals judges, 42 new justices of the peace, they're actually diminishing the size of the Supreme Court from six to five so as to deprive Jefferson of an opportunity to appoint a new justice for one of those who is retiring. This is outrageous. And Jefferson also thinks it's outrageous that Marbury has filed a suit in the Supreme Court and has asked the Supreme Court to order the President of the United States to do something, which Jefferson thinks is a violation of the separation of powers. - [Kim] So, William Marbury is one of these judges that John Adams had appointed in the midnight hour. He decides to sue, and this is directly to the Supreme Court, right? 'Cause it's in the Supreme Court's original jurisdiction? - [Kevin] Okay, so he sues directly in the Supreme Court. Right now we think of the Supreme Court generally as a court that hears appeals, right? Usually you don't go there in the first instance. But as we said, this was a new thing. And it was also new to be suing the executive branch. So it makes sense, if you think about it, if you're going after the President and the President's Secretary of State to go directly to the Supreme Court. - [Michael] Marbury brought the suit in the Supreme Court, but the question and the case is whether the Supreme Court can here this within its constitutional original jurisdiction. So under the Article III of the constitution, at least as John Marshall chooses to interpret it, in Marbury versus Madison, this particular case can't be in the Supreme Court's original jurisdiction. It could only be filed somewhere else and then appealed to the Supreme Court. - [Kim] So John Marshall's a pretty big figure in the history of the Supreme Court. Can you tell us just a little bit more about who he is and why he's so important? - [Kevin] Sure, he is still the longest serving chief justice. John Marshall was chief justice from 1801 to 1835. He was appointed by President Adams in early 1801. This was one of the final acts of Adams' administration, and he went on to say that it was the proudest thing he had done for the American people. Marshall was a Federalist from Virginia. So this made him a little bit odd, because the leading political figures in Virginia were Democratic Republicans. But Marshall had been a soldier in the Continental Army. He was at Valley Forge with Washington and with Hamilton, and his experience is under the Continental Congress and under the Articles of Confederation, and then later serving in state government in Virginia, made him realize that we needed a much stronger national government. And that's what turned him into a Federalist. So he was really in the mold of Washington and Hamilton. And so this put him at odds with the new President Jefferson when Jefferson took office. Nevertheless, over the course of the three and a half decades that he was on the Supreme Court, Marshall gained a reputation for being above politics, above party, and he was really successful in bringing the court together as an institution, to speak usually with one voice, for the constitution. So his great success was to identify himself with the Court, to identify the Court with the Constitution, and to identify the Constitution with the people. - [Kim] All right, so Marbury sues for his commission as a federal judge, and then Marshall and the Supreme Court are tasked with this issue of figuring out whether Marbury should get his commission or not. So can you take us through Marshall's thinking? How did he reason his way to the answer in this case? - [Michael] So there are two different dimensions to Marshall's thinking. One is the dimension of a lawyer, and the other is the dimension of a political strategist. Marshall understands that if he issues an order to the Jefferson Administration to deliver the commission he will be defied. He knows that almost to a certainty. James Madison has refused even to show up in court in response to an order to show cause why a writ of mandamus should not be issued. - [Kevin] So mandamus is from the same root as mandatory or mandate, right? It's an order. And here the issue was did the judiciary have the power using this writ of mandamus, to order the Secretary of State to do something. - [Michael] So Marshall has to figure out, what can he do that isn't gonna make the court look hopelessly weak, if he just says there's no jurisdiction then people are gonna think he's supine and he's afraid to challenge the President. But if he orders the President to deliver the commission, which is what he'd like to do, he knows Jefferson will defy him, and he has no authority, he has no enforcement capacity. So then the court will just look impotent. So what he wants to do instead is, he wants to act by indirection. The first thing he says is, the President's not above the law. The President can be mandamused. The second thing he says, in this particular case a writ of mandamus would be the appropriate remedy. But the third thing he says is, I have to ask whether I have jurisdiction in this case. - [Kevin] The problem is, the list of cases in the Constitution that can be heard by the Supreme Court in its original jurisdiction did not include cases like Marbury's. So this was a problem because Congress had passed a law purportedly telling the Supreme Court that it could hear cases like this. - [Kim] Ah, okay. - [Kevin] That's what Marbury was relying on. Right? He wasn't just thinking, oh I'm gonna go to the biggest court in the country. He was relying on a federal statute that seemed to give the court jurisdiction. But Marshall said that statute conflicts with what the Constitution says. It goes beyond the limits set for this court in the Constitution. And when you have a conflict between the Constitution and a federal law or any law, the Constitution wins. Right? So this is the principle that has been called Judicial Review. The idea is you have to review the laws to make sure they comply with the Constitution. And if a law is unconstitutional it can't be enforced by the Supreme Court. So it's a long way of saying that Marbury lost because the court didn't have jurisdiction. The court didn't have jurisdiction because the law that said it had jurisdiction was unconstitutional. - [Kim] Wow, okay. So there's a lot going on here, but one of the big takeaways is this notion of Judicial Review, or the idea that the Constitution wins and it's up to the Supreme Court to decide whether that's the case. Can you talk more about the affects of Judicial Review? How does it check the power of the other branches of government? - [Kevin] In order for a law to be enforced against anybody, all three branches of the government have to have taken some kind of action. So Congress had to have passed a law and the President has to sign it. Then the law has to be enforced against somebody in a way that gives rise to a legal case. And then the judiciary gets the final word in that legal case as to whether the law is constitutional. So the one way that Judicial Review operates as a check on the President and the executive, is providing a backstop against the enforcement of unconstitutional laws. - [Michael] So when the courts strike down President Trump's travel ban, that's Judicial Review. Or when the Supreme Court said President Truman exceeded his authority in ordering the seizure of the steal mills during the Korean War, that's Judicial Review. Or when the Supreme Court recently almost struck down the Affordable Care Act, that would be an exercise of Judicial Review. - [ Kim] Interesting, so this case and perhaps just Marshall as chief justice, in general made the court, I think much more powerful than it had been. Do you think this new power for the court or expansion of power for the court would have surprised the framers? - [Michael] At the Philadelphia Convention, more of the framers spoke in favor of Judicial Review than against, but the issue didn't come up very much. There wasn't that concerted a discussion of it, and they neglected to explicitly authorize the practice and the Constitution, which was kind of an oversight. It's just not a subject they spent a great deal of time talking about. And even to the extent they believed in Judicial Review, they probably didn't think the practice would be anywhere near as extensive as it's become over the course of American history. The Supreme Court just wasn't that powerful an institution in 1803, and the fact that it was declaring the power of Judicial Review, but then was declining to exercise it in Marbury is very revealing of how lacking in power the court was. - [Kevin] This was the first time that the Supreme Court exercised this power of Judicial Review, and it is something that everyone agrees, a power that everyone agrees that the Supreme Court has. And it's a big awesome power, and so it affects us because we're still arguing over how that power should be exercised, and that is an argument worth having. - [Kim] So we learned that far from simply being a case about one man's commission getting lost in the mail, Marbury versus Madison tested whether the President or Congress was above the law in the United States. Chief justice John Marshall's answer was emphatically no. And the decision in this case established an essential precedent for the Supreme Court, the power of Judicial Review. To learn more about Marbury versus Madison, check out the National Constitutional Center's interactive Constitution and Kahn Academy's resources on US Government and Politics.