With pending judicial nominations being held up by a filibuster, and lots of flip talk about the "nuclear option" being employed to end filibusters on judicial nominations, it's important to realize what's really at stake here -- the viability of the federal (and state) courts as an outlet for redress of grievances, both private and public. The current Republican power grab (and yes, that's what it is) is about seizing direct control of the courts and closing off this outlet of redress. It's an assault on the whole notion of judicial review, a term you may have seen thrown around a lot lately.
OK, judicial review. What's that mean? Excellent question. Let's go through it on the flip.
Yeah, yeah, blah blah blah, lawyer talk. What was the case about?
The case was a pretty simple one. Marbury and several other men had been named as justices of the peace in the District of Columbia by President John Adams in the waning days of his presidency in 1800. The Senate had confirmed these nominations. The actual commissions, however, had not been delivered by the Secretary of State by the time the new administration of Thomas Jefferson came into office. The new Secretary of State, James Madison (yes, that guy) refused to deliver the commissions and the new justices of the peace sued.
Pretty simple, huh? The result of the case was that the justices of the peace were entitled to their commissions. But Chief Justice Marshall went a lot further. He used this case as a vehicle to discuss the role of the courts in what was still a very new constitutional system, only 11 years old.
Marshall's questions were simple: (1) If a law conflicts with the constitution, which shall prevail? (2) What is the role of the judiciary in the new constitutional system? Marshall then proceeded to answer these questions:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
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.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions--a written constitution--would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.
The constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?
"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support?
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
Yeah, sure, lawyer, give us a long quote from a 202 year old case, I'm falling asleep. What does it mean?
One -- Marshall is saying that the Constitution is the supreme law of the land, and that in carrying out their respective functions, all three branches of government must follow the Constitution.
Two -- the courts are the exclusive branch of government with the responsibility of interpreting the law. Let me repeat the most important phrase in the whole opinion -- "It is emphatically the province and duty of the judicial department to say what the law is." Congress writes laws, the President carries them out. And the Supreme Court, ultimately, decides what they mean. Not Congress. Not the President. The Court. Congress can change the law, and the President can change the way he executes the law. But the Supreme Court decides what the law means.
Three -- laws inconsistent with the Constitution shall not be enforced by the courts. The Constitution is the Supreme Law of the Land, and normal legislative acts must give way to the constitution where the two are in conflict.
These principles may seem obvious today, but in 1803 it was a big deal. Not every democratic government works this way -- in many systems, the courts are purely secondary to a parliamentary or executive branch of government. Even in England, the idea of judicial review is much more modern and much more tenuous than that established here. The notion of judicial review is responsible for virtually every major Supreme Court case establishing individual rights of the last century.
This case was the Supreme Court's assertion of its role as a co-equal branch of government. While initially it was often ignored by the President (most famously, by Andrew Jackson after the Court, again through Chief Justice Marshall, ruled against the government's forced movement of the Cherokee Indians from Georgia and the Carolinas), it is the basis of the fundamental respect that Americans have for the decisions of the Supreme Court. Even a decision as controversial as Brown v. Board of Education, while opposed and delayed and evaded, is still regarded as the "law of the land."
How strong is the notion of judicial review in the eyes of the Supreme Court? So much so that 200 years later, every sitting justice of the Supreme Court has invoked the central language of Marbury v. Madison in at least one opinion that I found in a cursory review. Most recently, Justice Scalia quoted Marbury v. Madison in 2004. Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769 (2004). Justice Kennedy did the same in Legal Services Corp. v. Velazquez, 531 U.S. 533, 545, 121 S.Ct. 1043 (2001). Justice Stevens, in dissent in everyone's favorite case, Bush v. Gore, 531 U.S. 98, 128, 121 S.Ct. 525 (2000), also cited Marbury v. Madison. In his unanimous opinion in another infamous case, Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636 (1997), Stevens did the same. Justice Souter, concurring with Justice Ginsburg, cited Marbury in Miller v. French, 530 U.S. 327, 353 n.3, 120 S.Ct. 2246 (2000). Ditto Justice Rehnquist in U.S. v. Lopez, 514 U.S. 549, 566, 115 S.Ct. 1624 (1995). Even Justice Thomas got into the act in Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 106-107, 113 S.Ct. 2510 (1993). Justice O'Connor has never had occasion to cite the specific language about judicial review, but she has cited Marbury for the proposition that laws repugnant to the Constitution shall not be enforced by the courts. Mississippi University for Women v. Hogan, 458 U.S. 718, 733, 102 S.Ct. 3331 (1982). Only the newest Justice, Breyer, appears not to have invoked Marbury v. Madison in an opinion, although I have little doubt that he would apply it if it were before him.
In short, judicial review is the bedrock principle upon which the independence of the judicial branch of government exists. And Republicans hate the fact that, despite controlling the legislative and executive branches of government, they don't really control the judiciary. As conservative as it can be at times, the judicial branch of government jealously guards its own prerogatives before partisan ideology. When DeLay and Cornyn attack "activist judges," they are attacking the notion of judicial review, they are attacking the very foundation of the third branch of government, and they are seeking to take control of it for partisan purposes in a way that has never, in over 200 years, ever occurred or really been attempted.
The arrogance and breadth of this power grab is truly stunning. Schiavo, class actions, tort reform, the gutting of habeas corpus review, the limiting of court power to act, all of these actions are an attack on the most fundamental notions of our system of government. Separation of powers. Judicial review. Checks and balances. To which Republicans say, "to hell with all that. We want to control EVERYTHING."
So when you think about DeLay and Cornyn, Schiavo and class actions, tort reform and habeas corpus, it's not about lawyers, or prisoners, or any particular case, it's about power. Naked power that cares not one whit for tradition, or stability, or fundamental principles of limited government and separation of powers that have been in place for over 200 years. It's the complete antithesis of the word "conservative." It's about undoing Marbury v. Madison, and taking over complete power by the legislature, as warned against by Chief Justice Marshall.
If that doesn't appall you, you're either a Republican or you're not paying attention. It's about what kind of constitutional system we're going to have, and who gets to define that system. What rights you have under the Constitution would be determined not by the courts, but by the Congress. If that doesn't scare you, you're on the wrong blog. This fight, and it will be a fight to the death, is about the rights of everyone, you, me, and the guy down the street. So when you hear about the nuclear option and judicial nominations, be afraid. Stand up, be counted, and do whatever you have to do to make sure that this destruction of our system of government does not happen.