The US Court System

The role Supreme Court in our government has evolved over our history. We you aware of that and do you know how? This is an interesting piece of history that not many people know or remember. Read Robert Freer’s article below to find out how William Marbury who one wouldn’t think him a likely figure to test the basic bonds of a nation, tested the limits of executive power and congressional authority while securing the Supreme Curt as arbitrator of the Constitution.

By Robert E. Freer, Jr., President of The Free Enterprise Foundation

The judicial Power of The United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

Today the majesty of our Supreme Court is fixed within the fabric of our nation. It works as a bulwark, with the executive and legislative branches, against the daily passions which would stampede us into irretrievable harm. It has not always been thus. During the administrations of Washington and Adams, the Court’s relationship to the other two branches was ill defined. Only good Federalists were selected for appointment, and the cases that appeared before it did not call for the Court to interpret its relationship and the rule of law with the other two branches. In 1801 that changed. The newly elected President and Republican majorities in Congress moved promptly to rescind legislation creating a number of new judgeships that President Adams filled in the waning days of his administration. In a few cases appointments duly made had not been delivered prior to President Jefferson taking office. One such appointment, William Marbury’s, steered the Court onto the course it now comfortably assumes as the arbiter of the Constitution. This case first tested the limits of both executive power and Congressional authority and, moreover, secured the Court as the arbitrator of Constitutional disputes.

To view William Marbury one wouldn’t think him a likely figure to test the basic bonds of a nation. Trained in finance, he developed a wealth of experience working for the state of Maryland. One history notes “He helped his friends, and they helped him,” but his timing was almost always bad. He sought influence in Annapolis just as Baltimore was replacing its commercial influence, and he later moved to Georgetown which by then had not only lost influence to Baltimore but been replaced as Washington’s port by Alexandria. However, Marbury did possess one superior trait that served him well wherever he resided: He had an impeccable reputation for honesty. “Hundreds of thousands of dollars passed through his hands in all of his offices of public trust, with little suggestion that he had diverted any money to his own pocket.” He was also a staunch Adams Federalist, and the departing administration, in one of its last acts, rewarded him by designating him Justice of the Peace for Georgetown. Though the appointment made it through the hoops of Senate consent and signature by the Outgoing Secretary of State, it was not delivered prior to the appointment of James Madison as Secretary of State in Thomas Jefferson’s administration. Madison refused to deliver it. It seemed Marbury would again suffer from his wretched timing. To make matters worse, the Secretary of State who signed his commission would as Chief Justice deny him the right to any relief for its non delivery—but we get ahead of ourselves.

Marbury, faced with Madison’s refusal to deliver his commission, filed under the Judiciary Act of 1789 in the Supreme Court for an order that would require its delivery. In the opinion of the Court on Marbury’s request, Chief Justice Marshall carefully set out the origins and limitations of Congressional power, and in measured prose, established the paramount power of the Constitution and The Court’s role as its interpreter—including the right to declare an act of Congress unconstitutional. As it pertained to William Marbury, Justice Marshall found that the Judiciary Act exceeded Congress’s Constitutional authority to hear a case such as Marbury’s as a court of first review. Original jurisdiction of the Supreme Court was restricted under the Constitution to “…Cases affecting Ambassadors, other public ministers and Consuls, and those in which a state shall be Party, in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction…” By resisting an expansive notion not found in the Constitution, by chiding a prior Congress (Federalist) for exceeding its authority and the executive branch for exceeding its authority in not carrying out its responsibilities under the law to deliver the appointment, Marshall established the authority of the Court but dodged a confrontation over the appointment by dismissing the case as improperly brought. Advanced under an unconstitutional statute, Marbury’s complaint should have not been set forth in The Supreme Court. It would be 54 years before the Court would again find a statute unconstitutional.

When reading the Opinion today, its wisdom and clarity of thought strikes us. Chief Justice Marshall assumes the Delphic robes of the ideal Justice in his retrained assertion of the Court’s jurisdiction. His appointer, John Adams, in what is oft sited still as the description of the ideal judge, called for… “Men of experience on the laws, of exemplary morals, invincible application, unruffled calmness, indefatigable application… [and] subservient to none.” As a nation we have just gone through the confirmation of the court’s 110th judge, Associate Justice Samuel Alito, who is a man that would have drawn praise from John Adams and should draw praise from us as well.

Justice Alito has earned commendations from judges and members of the Bar deemed both philosophically liberal and conservative for his judicial rectitude, scholarship, and clarity of opinion. I predict that ten years from now neither the political right nor left will be able to rely on his making any decision other than that firmly founded in the law. His conservatism resides in the non-assertion of the Court’s concern for matters not squarely required to be decided in a given case. This conservatism properly preserves Congress’s lawmaking function, and that is what we must insist on in our judicial branch. Should we depart from this norm, the judicial branch will cease being a balance for the other two and take on trappings of the legislature, thus ruining our Founders’ well thought plan and dooming us to a gradual forfeiture of our freedom as well.

Copyright © 2007 by Robert E. Freer, Jr. All rights reserved

About the author: Robert E. Freer, Jr. is President of The Free Enterprise Foundation. He is a Visiting Professor, at The Citadel and elected in 2005 to be their first John S. Grinalds Leader in Residence. A regular contributor to the Mercury, He can be reached by E-mail at The Citadel . Copies of his earlier columns can be found The Free Enterprise Foundation.

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