Guest Essayist: Daniel A. Cotter

Marbury v. Madison (1803) – A Landmark Decision Establishing The Supreme Court’s Role

In an effort to fill the Chief Justice vacancy on the Supreme Court before leaving office, President John Adams offered the position to John Jay, who declined, citing the lack of dignity and respect of the Supreme Court.  Secretary of State John Marshall was with Adams when Adams received Jay’s rejection letter and, with time running out, Adams offered Marshall the Chief Justice position, which Marshall accepted. The Senate confirmed Marshall on January 27, 1801, and he became Chief Justice.  However, a Democratic-Republican Party-led Congress repealed the Judiciary Act of 1801 (aka the “Midnight Judges Act”) and subsequently replaced it with the Judiciary Act of 1802, causing the Supreme Court to be on hiatus from December 1801 until February 1803.

When the Court resumed hearing cases in February 1803, one of the first orders of business was deciding Marbury v. Madison, which presented the question of whether Adams had the power to issue the appointments to a number of “midnight judges,” including Marbury. On February 24, 1803, the Court issued its opinion in Marbury, setting a precedent that would make the Supreme Court “supreme” when it came to deciding Constitutional questions.  While the Supreme Court previously had suggested the principle, the Marshall Court made clear in Marbury that, when it came to judicial review, “It is emphatically the province and duty of the Judicial Department to say what the law is.”

The story of the election of 1800 and the events leading to the Marbury decision are worth telling.

The Election of 1800 and the Changing of Parties

The Election of 1800 was a hard-fought presidential contest in which Vice President Jefferson defeated President John Adams.  The election saw the passing of the Presidency from Adams’ Federalist Party to Jefferson’s Democratic-Republicans, and Congressional control changed in the same manner.  Such a political change was a first in the United States’ brief history.

The Judiciary Acts of 1801 and 1802 and the Midnight Judges

Adams and the lame-duck Federalist Congress passed the Judiciary Act of 1801, which expanded the circuits and jurisdiction of the Federal courts, added a number of justices of the peace (including the justice of the peace seat that Marbury was offered), and reduced the number of Supreme Court Justices from six to five effective upon the next retirement.  One of the Act’s goals was to eliminate Jefferson’s ability to nominate a Justice.

On March 3, 1801, the night before his term as President ended, Adams named his judicial appointees (the “midnight judges”).  The Senate approved the appointees, and the next day Adams’ Secretary of State, John Marshall, who had just become the Chief Justice of the Supreme Court but still remained Secretary of State, was to deliver the commissions to the midnight judges.  Marshall delivered some of them, but given the number, and because he believed the appointments were routine, he did not deliver all of them.  Rather, Marshall thought that the next Secretary of State would deliver the remaining commissions, including that of William Marbury.

Jefferson believed the commissions for Adams’ appointees were void and instructed his Acting Secretary of State, Levi Lincoln, to immediately stop delivery of the remaining commissions.  The new Congress quickly repealed the Judiciary Act of 1801 and replaced it with the Judiciary Act of 1802, which was enacted on April 29, 1802.  The Act of 1802 provided for six federal judicial circuits, with one Supreme Court Justice from each circuit.  The Act of 1802 also eliminated the Supreme Court’s summer session, providing instead for a single Court session commencing on the first Monday in February of each year.  As a result of the Act of 1802, no session of the Supreme Court officially took place in 1802 and the Court did not sit from December 1801 until February 1803, when the first Court session pursuant to the Act of 1802 commenced.

Marbury and the Petition for his Commission

Marbury filed a petition directly with the Supreme Court, seeking to have the new Secretary of State, James Madison, ordered to deliver the papers for Marbury’s commission as Justice of the Peace in the District of Columbia.  In December 1801, Marbury applied for a writ of mandamus.  The Supreme Court agreed to hear the case, despite pressures that the Justices might be impeached for doing so.  Because of the repeal of the Act of 1801 and the subsequent enactment of the Act of 1802, the Supreme Court did not sit in session from the end of 1801 until February 1803.  When the Supreme Court returned in February 1803, the second case it heard was Marbury v. Madison, on February 11, 1803.

The Decision

On February 24, 1803, John Marshall announced the unanimous 4-0 decision of the Supreme Court (Justices William Cushing and Alfred Moore missed oral arguments and did not participate in the decision due to illness).  Marshall, despite his direct involvement in the failure to deliver the midnight judges’ commissions, did not recuse himself from participating in the case.  In his opinion, Marshall stated that Marbury was entitled to his commission and that the Judiciary Act of 1789 gave the Court the authority to issue a writ of mandamus that would enforce Marbury’s right.  However, Marshall found that the Constitution defined the Court’s original jurisdiction and that Congress could not expand such jurisdiction by statute.  As a result, that portion of the Judiciary Act of 1789 authorizing the Court to enter writs of mandamus was found unconstitutional.  Marbury is the only decision during Marshall’s tenure as Chief Justice in which the Court ruled an act of Congress was unconstitutional. In supporting the decision, Marshall stated for the Court:

“It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”


With that statement, Marshall definitively established the Court’s role as interpreter of the United States Constitution.  The Constitution provided no guidance for which branch of government had the final word on such questions. While many legal scholars have noted that the interpretive power had been exercised by the Supreme Court prior to Marbury, and that the Founding Fathers had discussed judicial authority at the Constitutional Convention, Marshall’s assertion of Supreme Court power remains controlling precedent 214 years later.  It is one of his many powerful decisions that makes Marshall perhaps the greatest Chief Justice in our nation’s history.

Marbury v. Madison (1803) Supreme Court decision:

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also a Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

6 replies
  1. Barb Zack
    Barb Zack says:

    It’s ok for the Supreme Court to interpret the Law, the Constitution, but as history and I am sure, this study will show, The Supreme Court has now become a legislative body unto itself.

    I look forward to continuing this study.

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    TY Mr.Cotter, It is always interesting to hear “the rest of the story” for things that have become so familiar and institutionalized we do ask, nor even think to ask, how it was established. I was not aware, but am immensely glad that Chief Justice Marshall had the wisdom to define the court’s role as interpreter. We can once again stand in awe at the great gift we were given of so many wise and prudent patriots at our nations founding.

    TY for the education.

  3. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The crux of Marshall’s argument is completely missed by legal scholars swept by the notion that Marbury v. Madison established, somehow, judicial review. Interpretation is synonymous with judicial review, and judicial review is a Common Law procedure established over a century before the founding of the U.S. as can be found:

    That crux is Marshall raising the issue of taking an oath of office to obey the constitution requires interpreting the constitution. Contrary to postmodern political science, Marshall was not claiming that the court was the sole arbiter or interpreter of the law; but that it was necessary by oath of office, just like any other officer of the U.S.

  4. Patricia McGehee
    Patricia McGehee says:

    I have a question. Can the full Congress overturn a Supreme Court Decision? If not, then we can no longer say we have 3 EQUAL branches of Government.

    • Ralph Howarth
      Ralph Howarth says:


      A court decision is final between the two parties involved in the case. The whole function of a court is to determine whether or not a defendant will suffer injury by application of the law. Anything after that is simply a legal opinion to why the court came to its decision. And the principal of the Rule of Law is that no legislature can overturn a court decision distinctly between two parties in a controversy or suit. But the Law of the Republic is that the legislature can assure the court never makes such a decision ever again.

      The legislature can simply pass statutory legislation to clarify what may have not been clear in the court case; thereby, offering more instruction for what the court may have exercised license. The legislature also may deny funding to certain types of controversies. The legislature may also limit the appellate court jurisdiction of the Supreme Court and demand certain controversies be administered out of a petite, summary administrative court and never arrive at the Supreme Court. These two former powers alone can both take away the money and the authority of the Supreme Court to hear certain cases. The last option is the nuclear option. The legislature can impeach and remove court members for “bad behavior”. Bad behavior includes judges that make egregious license of the law and making unconstitutional decisions. The nuclear option has been customarily an effective back-channel threat that has kept the court more honest. But by acquiescence, the legislature has tolerated the kind of license the court has come to assume.

      Last, a petite jury in any district or superior court may acquit a defendant from any harm of the law including high court judicial decisions in prior controversies. This is known as jury nullification.


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