In law school, one of the very first classes you are required to take is called “Con law.”
For those of you non-lawyers (like I was when I first went to law school), I thought, “awesome! I am going to be a jailhouse lawyer.” It was partially because Con Air, a not-so iconic film starring Nick Cage, was being filmed at the time and that was about Convicts taking over a plane.
But alas, Con Law is about Constitutional Law, not representing convicts. There is not a required course about representing convicted criminals.
In Con Law 1 (not to be confused with Con Law 2), you typically learn about something called “separation of powers.” You study case law and the Constitution about how our three branches of government work.
You also, as part of Con Law 1, study a case called Marbury v. Madison, the first important Supreme Court case I will write about today. Some say its the most important Supreme Court case ever. And I won’t tell you why until you get to the end because the legal drama is kind of awesome.
Marbury v. Madison is an important Supreme Court case to be sure, but its indecipherable text is also a test for law students. Make no mistake, it satisfies the cruel and unusual punishment clause and, should one be able to wade through it (let alone understand it), you may actually like being a lawyer.
Marbury was decided in 1803, about 27 years after our Nation’s founding. If people think that our politicians were pure as the driven snow at this time of our founding, not so young Jedi.
So in 1800, Thomas Jefferson shellacked John Adams in the general election. Adams was pretty steamed and wanted his legacy to live on. So what did Adams do? He appointed a bunch of judges (called justices of the peace at the time). Senate approved them too. At that time, there needed to be a piece of paper the president needed to sign and deliver called a “Commission” that basically told the judges what their authority was. And, for a variety of reasons, President Adams didn’t get that piece of paper signed.
Jefferson said, “I don’t want a bunch of Federalist Yahoo’s (yahoo had not been founded yet) becoming judges. I ain’t singing any of the Adams Commissions.” He ordered his Secretary of State, James Madison (that’s the Madison in Marbury v. Madison) not to deliver the Commission.
In walks Marbury. He said, “Hey President Jefferson, I was guaranteed a job as a judge. The senate approved it. So let me go and judge.” Marbury sued the government sought a court order to “Give Marbury his job!”
Chief Justice John Marshall, an Adams appointee, decided the case. Two justices abstained from the decision. The Supreme Court made three decisions in the opinion, one of which is really important. Let’s start with the other two first because it says a lot about how we lawyers ready opinions.
The first decision was that Marbury had the right to get his Commission and that Jefferson/Madison were wrong to not deliver it. Marbury did much rejoicing.
The second decision was that Marbury had a right to a remedy for not getting his commission. This means, he had a right to seek court relief. Even more rejoicing at the Marbury camp.
Then we get to the third, and most important decision. Justice Marshall ruled that the Supreme Court did not have the power to issue an order getting Marbury his job.
Say what? Marbury wins all the stuff but then he loses? That’s right. He LOST even though the Court said President Jefferson was wrong to do what he did.
So why did that third decision happen? It was because there was a law that said the Supreme Court could decide these types of questions (it was called the Judiciary Act of 1789). Justice Marshall said that this law gave the Courts power that the Constitution did not grant and, therefore the law was unconstitutional. So a law passed by the legislature that was inconsistent with the Constitution could not convey power to the Supreme Court that was otherwise not allowed.
So why is a case where the Supreme Court says it doesn’t have power so important?
Its because it decided the question that the Supreme Court has the power of judicial review of decisions and that the Constitution is the Supreme law of the land. And in the words of my Con Law 1 professor James Blumstein, it decided the question of “who decides who decides” what the law is.
And perhaps the most interesting part of this opinion is that the Supreme Court decision where the Court said it didn’t have power became the most important case to expand power because it rested on the interpretation of the Supreme Court’s interpretation of the grant of authority in the Constitution.