Why Marbury has endured

Article: The Surprising Reason We’re Fighting Over the Supreme Court — and How to Fix It

It’s safe to say that both the left and right hate Marbury v. Madison. It is the Supreme Court decision. The one through which the Supreme Court of the United States asserted the power of judicial review. Which is, I believe, one of the most misinterpreted powers of the Federal judiciary.

And those who badmouth Marbury or call it a “problem” seem to overlook the obvious: Congress had enacted a law in blatantly obvious contradiction to the Constitution of the United States.

And that the above-linked article makes zero mention of the law’s specifics is very telling.

The law overturned in Marbury expanded the Supreme Court’s original jurisdiction. Whether they have proper (also called “competent”) jurisdiction is one thing every Court must consider before rendering a decision on a case, or even before allowing a case to proceed. And with the Supreme Court of the United States, the Constitution is quite specific:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Congress can only touch the Supreme Court’s appellate jurisdiction. The Supreme Court’s original jurisdiction is set in stone. Amending the Constitution is the only way that can be modified. This also means Congress cannot grant original jurisdiction to a Federal District Court where the Constitution gives that jurisdiction to the Supreme Court – e.g. cases involving disputes between States.

In the case of William Marbury, the Supreme Court of the United States, under the Constitution of the United States, did not have competent jurisdiction and could not provide Marbury relief. That was Marshall’s ruling. It upheld two fundamental rules of the Constitution: Congress cannot make any Acts except where they are granted power to do so, and the Federal judiciary cannot enforce any Acts that are contrary to the Constitution.

And quietly, it also established a third principle applicable to just the Federal judiciary: a Federal Court cannot hear a case and grant relief except where the Constitution and Federal statute grant it jurisdiction, with the Constitution prevailing where the two conflict.

John Marshall did not create this power with Marbury, as many have asserted over the years. And still do today. He merely asserted it.

To assert that Marbury should be reversed or in any way limited is to assert that Congress should, in short, be able to do whatever it wants. And anyone pointing toward Marbury as any kind of problem with the Federal judiciary seems to want just that.