The Great Decision

by Cliff Sloan and David McKean

Constitutional history is mile-posted by crucial Supreme Court decisions that profoundly influenced our society. Three in particular have attained special places in that history for their brilliance or ineptitude.

Bush v Gore

The third of these is Bush v Gore, the Supreme Court decision that handed the presidency to George W. Bush. Now, constitutional scholars are loth to render final judgement on a decision until decades have passed, because they rightly fear the influence of the passions of the day. But this decision has attracted surprisingly broad condemnation that grows more confident with each passing year. The fundamental objection to Bush v Gore is that it was a blatantly political decision, with enormous political consequences, that was decided on a 5 to 4 vote split along straight party lines. This violated three long-standing traditions. First, the Supreme Court does not meddle in purely political decisions; doing so undermines its authority. Second, the Supreme Court prefers to avoid earth-shaking decisions on a 5 to 4 vote; when great stakes are involved, the Supreme Court prefers to scale down the breadth of its decision to something that can gain at least a 6 to 3 margin. Third, the Supreme Court is extremely careful with decisions that split along obvious party lines; again, the preference is to adjust the decision so that it can get some cross-party support. Bush v Gore violated all three of these traditions. 

Even more damningly, the Court declared that its decision had no standing as a precedent. In effect, they declared, “We’re giving the Presidency to Mr. Bush, but don’t quote us on our logic, because it applies only to this one special case.” They denied that their legal reasoning was sound enough to establish a precedent, yet confidently rendered a decision of profound political impact.

The reason they took such a perverse position was that the conservative justices who favored the decision were grossly violating all their own precedents. The basis of the decision in 
Bush v Gore was the equal protection clause of the 14th Amendment, which declares that no state shall deny any citizen the equal protection of its laws. The court declared that recounting votes in some counties in Florida denied equal protection to those voters in counties that did not undergo recounts. Yet the Supreme Court has long refused to intervene in the much more serious problem of gerrymandering, under which voters of the minority party are clustered together in ways that detract from their overall political strength. Since the early years of this republic, citizens have appealed to the Supreme Court for protection from such blatantly political schemes, and the Supreme Court has steadfastly refused to dirty its hands with such strictly political (as opposed to legal) controversies. The conservative justices on the Supreme Court who applied the equal protection clause in Bush v. Gore had previously rejected its application in more extreme cases.

Dred Scott

The second most strikingly inept decision was the Dred Scott decision in 1857. This decision was so perverse, so blatantly racist, so inimical to the basic concepts underlying the Constitution, that it attracted instant and broad condemnation and is now regarded as almost incomprehensible in its stupidity. Where the Declaration of Independence had loudly declared that “all men are created equal”, and that principle had undergirded countless laws and judicial decisions, the Supreme Court explicitly declared that persons of African descent were not citizens and had no protection under the law. This applied to both slave and free. It struck down a law passed by Congress – only the second time in American history that the Supreme Court had taken so strong a position.

But the Supreme Court did not stop there. It went on to declare that the Property Clause in the Constitution applied only to lands possessed at the time of ratification of the Constitution in 1789. Lands acquired since then were simply beyond the reach of federal law, and therefore Congress could not ban slavery in US territories. Finally, the Due Process clause prohibited the Federal government from freeing slaves brought into federal territories.

The Dred Scott decision was a huge victory for slaveholders and the ugliest blot on the Supreme Court in American history.

Marbury v Madison

But this book review is about the single most brilliant, and the most important decision every rendered by the Supreme Court: Marbury v Madison, issued in 1803. This is the decision that asserted judicial review, the right of the Supreme Court to declare actions taken by the other two branches as unconstitutional and therefore null and void.

I had always thought this element of Marbury v Madison something of a no-brainer. After all, if the legislative branch is stupid enough to pass a law that contradicts an already standing law, the courts are placed in an impossible position. For example, suppose that Congresses passes a law asserting that theft is to be punished with two years in jail, and then later passes another law declaring that taking property during a riot is to be punished by one year in jail. Suppose now that a defendant is convicted of theft and is sentenced to two years in jail, but argues that a riot was taking place nearby at the time, and therefore should be sentenced to only one year in jail? The two laws are clearly inconsistent. Congress has placed the court in a nonsensical situation. How can the court craft a logical solution to a fundamentally illogical situation? In such cases, the court has no choice but to ignore one of the two laws, rendering it for all practical purposes null and void. Thus, the principle of judicial review is inherent in the principle that a body of laws must be logically consistent.

Much to my surprise, this notion was not apparent to legal theorists at the time of Marbury v Madison. In the English system on which American law was founded, Parliament had final authority on all legal matters; its most recent laws were paramount. Logical inconsistencies were waved aside with the observation that Parliament’s most recent laws overruled all previous laws. The fact that this left gaping holes in the logical structure of the legal system didn’t bother the legal theorists of the time.

Another crucial question was the matter of who should interpret the Constitution. President Thomas Jefferson and many others in his Republican party (no connection with the modern Republican Party) held that each of the three branches of the government was independent and should interpret the Constitution as it saw fit. This surprises me; Jefferson was a brilliant thinker, and his failure to perceive the pernicious consequences of such an arrangement staggers my imagination. If each branch of the government could interpret the Constitution however it saw fit, there could be no constraints upon any branch’s actions. There would be no such thing as “checks and balances”, a concept introduced by the French political thinker Montesquieu, which underlay much of the thinking behind the Constitution. A President who could freely declare his actions constitutional was, for all practical purposes, indistinguishable from a dictator. Jefferson’s remedy, that the voters throw him out, strikes me as inadequate.

An additional consideration was the political weakness of the Supreme Court. At the time, it did not have centuries of tradition to lend gravitas to its decisions. As far as most Americans were concerned, it was just another court composed of regular judges, little different in nature from the bean-counters who ran the Treasury. If the Supreme Court pushed too hard against the President or the Congress, it would simply be ignored.

Into this context came a case trivial in impact but laden with legal significance. When John Adams realized that he had lost the election in 1800, he set to work stuffing the Federal government with members of his party, known as the Federalists. (In general, the distinction between Republicans and Federalists was that the former were libertarians who emphasized states’ rights, while the latter believed in a strong central government.) The lame duck Federalist-dominated Congressed hurriedly passed a law greatly expanding the number of posts in the Federal government, giving Adams many opportunities to both reward party loyalists and populate the government with bureaucrats who could be trusted to impede Jefferson’s Republican policies. It was a dirty trick, but it was legal.

But every one of Adams’ new appointments had to be approved by the Senate, a slow-moving body. Adams spent the last two months of his administration lining up appointments and steering them through the Senate. In the last frantic days of his tenure, he finally got down to the lowest-level offices: a few dozen justice of the peace positions. In those days, a justice of the peace was a community problem-solver who dealt with all the petty conflicts that people get themselves into. He often used informal methods to resolve problems, but did have some minor legal powers. For the most part, the office was a sinecure.

The last appointments were made just a few days before Jefferson’s term began. Adams shepherded them through the Senate, wrote up the legal documents, and sent them to the Secretary of State, who affixed the legal seal on them and had them delivered to the appointees. But in the last-minute rush, five such commissions were overlooked and remained in the office of the Secretary of State. The very next day, by chance, the new President Jefferson happened to visit the office of the Secretary of State and happened to notice the five commissions on a desk. He directed the new Secretary of State not to deliver them. Without their official commissions, the appointees could not collect their salaries.

At this point, I’ll simplify the story by conflating the group of appointees into a single person: William Marbury. He led the group in its legal struggle. First he spent nine months getting the runaround from the Jefferson administration. No, the Treasury could not pay them without first getting a copy of the commission. No, the Secretary of State would not release any such document. No, the Congress would not provide any assistance – it now had a Republican majority. Eventually, Marbury filed suit with the Supreme Court for a 
writ of mandamus that would compel the Secretary of State (James Madison, who would succeed Jefferson as President) to release the commission to the appointees.

Here we come to one of the saddest episodes in the life of Thomas Jefferson, a man whom I revere as one of the greatest of Americans. Jefferson had been furious at the last-minute rush to stuff the Federal government with political appointees; he felt strongly that a President should be able to staff his government as he saw fit. In his bitterness towards what was admittedly a dirty trick, he seized upon the Marbury case as the one place where he could assert himself, and he fought that case with an angry determination that reflects poorly on his character. Jefferson first had the Republican-dominated Congress pass a new law that, in effect, put the Supreme Court out of business for a year as part of a “reorganization”. It was a dirty trick equal to Adams’, but it only bought him some time.

Next, when the Supreme Court finally did hear the case, Jefferson refused to send anybody to present his side of the case. He attempted to rob the Supreme Court of credibility by boycotting the proceedings. Marbury’s lawyer argued his case brilliantly. Nevertheless, the court made an attempt to elicit arguments in favor of the president. At one point, Chief Justice John Marshall asked if there was 
anybody in the room who wished to present an argument in favor of the president. Nobody stepped forward. With a sigh, he declared the proceedings concluded.

We don’t know much about the internal deliberations that led to the final decision, but it’s likely that Marshall led the way; the decision has the imprint of his brilliance in combining law with politics.

The decision was published in 1803; Marshall himself read the opinion, which was quite lengthy. It started off by considering Marbury’s case, and concluded that in fact Marbury had the legal right to the commission and Jefferson had violated the law by refusing to forward the commission to Marbury. A victory for Marbury, right?

Not quite. Marshall then proceeded to consider the issue of the court’s jurisdiction. That jurisdiction had been given to the Supreme Court by the same act of Congress that had established all those extra federal offices. But the Constitution made it clear that Supreme Court was an 
appellate court, not an original court. In other words, legal cases never began at the Supreme Court; the cases had to be held in a lower court, and the Supreme Court could only hear appeals from lower courts. With ironclad, bulletproof logic, Marshall concluded that the law giving jurisdiction to the Supreme Court was contradicted by the Constitution. He then argued that the Constitution was the supreme law of the land, and any conflict between a law passed by Congress and the Constitution had to be resolved in favor of the Constitution. Again, his reasoning was ironclad. He therefore came to the inescapable conclusion that the clause in the law passed by Congress granting jurisdiction to the Supreme Court was unconstitutional, and thus null and void. Accordingly, the Supreme Court lacked jurisdiction to decide the case, and it could not issue the writ of mandamus requested by Marbury.

It was brilliant legal-political jujitsu. On the one hand, the Supreme Court loudly declared that Marbury was right and Jefferson was wrong. At the same time, it held that it could not do anything about it, because he also declared that the Supreme Court could exercise judicial review: the right to declare actions by the other two branches unconstitutional and therefore null.

This put Jefferson in a pretty pickle: he had to choose between acquiescing to judicial review and losing the case brought by Marbury. If he acquiesced to the decision, he won the case but accepted the supremacy of the Supreme Court in interpreting the Constitution. If he rejected the decision, then the Supreme Court had made it clear that he would lose Marbury’s case, and he’d create a constitutional crisis if he then refused to obey the writ of mandamus.

Jefferson was furious but had no politically viable choice but to acquiesce. He spent the rest of his life complaining to anybody who would listen that 
Marbury v Madison was a bad decision. History has utterly rejected him on this matter.