December 23, 2004

How Does The Supreme Court Work?
#1 Mandamus, Marbury and Jurisdiction

In the real life Supreme Court, the landmark case Marbury v. Madison established the power of the Supreme Court to interpret the Constitution and to overturn acts of Congress that violate the Constitution. Most people high school and beyond are aware of this simple fact. What most people are not aware of is the true matter on which the Court first ruled an act of Congress unconstitutional.

Well, it needs some background. Jefferson became our third President after the election of 1800, and was to take office March 4th. Adams and his Federalist-dominated Congress were still in charge, and they passed a Judiciary Act creating new courts that would be staffed by Federalists. On March 2nd, Adams appointed 42 Federalists to be judges, all of whom were confirmed by the Senate on March 3rd. William Marbury was one of these men, appointed Justice of the Peace for the District of Columbia.

Adams signed all 42 of the Senate-consented appointments, and Secretary of State Marshall affixed the seal of the US on them. Marshall then became the Chief Justice of the United States, having been appointed by Adams to the office in early February, and swore Jefferson in on March 4th.

There's a lot of history and trivia here. The election of 1800 wasn't decided until the second half of February, because at that time the Vice President was not the junior partner to the President, but rather the runner-up in the Electoral College. So Burr, nominally Jefferson's VP, took as many votes as Jefferson in the EC and then didn't tell the House of Representatives to vote him down. It was almost humorous if you lived in any other country. This year was also the first time a President had taken the oath of office in DC, then taken in the as-yet uncompleted Capitol's Senate Chamber, which is now the Old Senate Chamber. There's more, but that's all history and trivia.

One of the interesting facets of the case is that Marshall sat in judgment, and wrote the unanimous decision for the Court, of an act he himself had only just recently performed. In one sense, he sat in judgment of his own actions (as well as the actions of others).

Now, when Jefferson took office, the 42 appointments were signed, sealed but not delivered. He ordered the new Secretary of State, Madison, to not deliver them. He considered them invalid, too late to be delivered. Marbury sued to get his commission and sit as Justice of the Peace. He wanted the Court to issue a writ of mandamus (mandamus is Latin for 'mandate') forcing the Secretary of State to deliver them. He cited the Judiciary Act of 1789 (distinct from the then-recently passed Judiciary Act of 1801) which granted the Court the power to "issue writs of mandamus in cases...to any persons holding office under the authority of the United States."

The Court's unanimous decision was interesting. It found that legally the commission belonged to Marbury and the other 41 last-minute appointments. The fixing of the seal of the United States made the appointment complete, not the delivery. This required a little reading between the lines of the Constitution, because it was never specified there when it happened. But he also found that the Court couldn't use mandamus against the Secretary of State.

Mandamus is the product of original jurisdiction, not appellate jurisdiction. If a court is the originating court - the court that has first dibs on a case - then it can use mandamus in appropriate situations. Appellate courts cannot issue a writ of mandamus against those it does not hold original jurisdiction. When the Congress 12 years earlier had given the Supreme Court mandamus over "any persons holding office under the authority of the United States" it had given the Supreme Court original jurisdiction.

The original jurisdiction of the Court is dictated by the Constitution as "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party" in Article III. In the Constitution, the Congress can make exceptions to the appellate jurisdiction of the Supreme Court. It has no power, however, to increase the original jurisdiction of the Supreme Court.

The power of mandamus gave the Court original jurisdiction, but it gave original jurisdiction beyond the limits of the Constitution. As such, it was unconstitutionally. This is where the Court first used judicial review and overturned an act of Congress for being unconstitutional.

The politics of the decision are simple. Marshall was a Federalist and he wanted to stick it to Madison and Jefferson for refusing the appointments Marshall himself had helped make. But there was very little chance that the President would even listen to the Court. Rather than author a decision the President could have ignored - and thus forever relegated the Court to small peanuts issues - Marshall chastised the President but removed his own ability to challenge it directly. Instead of challenging the President, they took on the constitutionality of an act of Congress. It's widely regarded as a brilliant decision for cutting a very tactical path while still using very credible legal arguments.

And with just a bit of humor we notice that, perhaps innocently, Marshall found that the commission became complete not with delivery, not with Senatorial consent and not with Presidential signature, but with the Secretary of State's affixing of the seal. He ruled that the person capable of completing and making official an appointment was the same post he had just vacated before becoming Chief Justice.

The misuse of mandamus was the mechanism ruled unconstitutional in Marbury v. Madison. For such an important case, it's a surprisingly tedious and mundane issue. But it's an important area for those interested in either history or law.

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