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Haunted by the ghost of “Marbury v. Madison:” Judicial review and abolishing the Supreme Court

Nov 10, 2022

First Floor at the Statute of John Marshall in the foreground, shadowed, quotation from Marbury v. Madison (written by Marshall) engraved into the wall. United States Supreme Court Building. Image: swatgesture. Source: Wikimedia Commons.

Editor’s note: Beginning with overturning Roe v. Wade, the ultra right-wing Supreme Court continues to attack hard-won and elementary democratic rights in the United States, from affirmative action to the Indian Child Welfare Act. The following article is the first in our new Liberation School series, “Crimes of the Supreme Court,” that demonstrates the fundamentally reactionary and anti-democratic nature of the Supreme Court. By examining key decisions in the Court’s history, we explain their historical and political context, explain the legal concepts and frameworks used to justify their decisions, and lay out their implications for later cases.

Our first entry focuses on a pivotal decision in which the Supreme Court controversially—and without legal grounding—granted itself the power to unilaterally declare the “constitutionality” of laws and statutes.

Introduction

In 2022, after a handful of unelected judges serving lifetime terms in the U.S. Supreme Court eviscerated the hard-won and overwhelmingly popular right to abortion, masses of people took to the streets to defend this democratic right to bodily autonomy. It was and is clear that the United States is not the “democracy” that our schools, media, and politicians proclaim endlessly, but the very antithesis of it. Where did the Supreme Court get this authority? It wasn’t authorized by a popular vote or any expression of popular will, but by the Supreme Court itself.

The watershed 1803 case of Marbury v. Madison established the power of “judicial review” for the Supreme Court of the United States, as well as defined the separation of powers between different branches of government [1]. The decision was authored by the first Chief Justice of the Supreme Court, Justice John Marshall. In its essence, the Marbury decision represents the first time the Court granted itself the supreme authority over the Constitution.

Judicial review allows the Supreme Court to strike down the laws of Congress (and the states) as unconstitutional [2]. The concept of separation of powers defines the power of the judiciary branch to “say what the law is” [3]. According to Marshall:

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 [4].

Approximately 220 years later, the Supreme Court used its power of judicial review to deprive about 168 million people in the United States of the constitutional right to abortion. The 2022 case, Dobbs v. Jackson Women’s Health Organization, found that:

The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely: the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty… The right to abortion does not fall within this category [6].

The eradication of a right so critical to the existence of so many has left people wondering, “Why do we have a Supreme Court?” How could a Court composed of nine lifetime political appointees, who are completely unaccountable to the public, but who wield the power to overturn any laws it wants—ever be defensible when it is in the hands of the capitalist state? Marxists answer these questions by examining the legal and political justifications for the court’s power of judicial review, and understanding the historical context and political motivations.

This article first examines the Marbury decision’s legal and political soundness—or lack thereof—to determine whether the right to judicial review could be justified by judicial precedent alone, even within the capitalist juridical framework. Second, it reviews the theoretical underpinnings of judicial review, demonstrating how it is unequivocally a tool of class rule, but one that is critical to bourgeois democracy in the United States, and that therefore may continue to pose some opportunities in the working class struggle, depending on the Court’s political composition and the state of struggle in society at large.

The Constitution: The best way to secure the rule of the wealthy colonial elite

The Marbury v. Madison decision was issued at an important political turning point in the development of the United States. When it was decided in 1803 it was controversial, and many still maintain the illegitimacy of the Court’s ruling. What explains this controversy?

One determining element was the instability faced by the new ruling class after the American Revolution, a period in which the wealthy colonial elite convened a series of Constitutional Conventions to set up a new form of government. The purview, size, and strength of a centralized government animated many discussions in light of the economic crisis ushered by London’s retaliatory measures. This crisis acutely affected U.S. merchants, who in turn leaned heavily on farmers through increased taxes and debt collection, confiscating their land when they could not pay.

By 1786, a group of Massachusetts farmers formed a group that referred to themselves as the Regulators. The Regulators adopted the method of armed resistance against debt collectors. What is known as “Shay’s Rebellion” entailed organized farmers forcefully closing debtor’s courts before finally being defeated by a mercenary army paid by wealthy merchants. This instability, combined with the ongoing resistance of enslaved Africans and Native Americans, compelled the colonial elites to revisit the Articles of Confederation adopted after the declaration of independence.

The Articles of Confederation, a loose agreement among the 13 newly independent states ratified in 1781, was a decentralized form of government. There was neither a national president nor a federal judicial authority. As such, the Articles of Confederation prevented the emergence of a centralized federal state to organize the interests of the ruling classes, which was increasingly necessary to secure their political rule.

The Constitutional Convention, held between May and September of 1787, was secretly convened to address these shortcomings. In addition to amending the Articles of Confederation, they constructed a new Constitution with the primary features of the contemporary U.S. state, which have remained unchanged in their core 235 years later. They outlined a two-house Congress, an executive branch, and a Supreme Court, although the Constitution specified “few guidelines for the Supreme Court” other than the nomination and approval process for the justices that would serve lifelong terms [6].

The Marbury v. Madison power grab

The historical and political context for the Marbury case reflects the struggle over the political form best suited to safeguard the interests of the new U.S. elite.

President John Adams, a member of the Federalist political faction like John Marshall, had been replaced by Thomas Jefferson, a Democratic-Republican, in the 1800 presidential election [7]. The Federalists argued that the country needed a strong national government to overcome the many governance problems under the Continental Congress and the Articles of Confederation of 1777.

Just before Jefferson took office on March 4, 1801, President Adams and Congress passed the Judiciary Act of 1801 (the “Midnight Judges Act”), which created many new courts, added judges, and gave the president more control over appointment of judges [8]. Adams used the Act to appoint new judges from his party: 16 new federal circuit judges and 42 new justices of the peace, including 23 justices in Washington. Ultimately, 17 of these Washington justices never received their commissions, and this failure was the basis of the action in the Marbury case.

The Senate approved the judicial appointees on March 3, 1801. Adams signed the commissions late in the night on his last day in office, which is why these judges are referred to as the “Midnight Judges.” Under the Act, the commissions were actual physical documents that did not go into effect until they were physically delivered to the new justices by the Secretary of State.

Marshall was the Secretary of State under Present Adams. Adams then appointed Marshall as Chief Justice just weeks before the end of the term. As Secretary of State, Marshall himself affixed the seal of the United States to the new judge commissions late that night on March 3, 1801, before they were delivered to the justices by his brother, James Marshall. Marshall delivered all of the commissions to the new justices in Alexandria, Virginia, but none were delivered to the new Washington justices [9].

William Marbury was a Maryland Federalist leader and the petitioner in Marbury v. Madison. He had been appointed justice of the peace in Washington, but no one had delivered his commission. Marbury, joined by three other appointees, petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver his commission. Marbury asked the Supreme Court for a “writ of mandamus,” a legal measure to compel the physical delivery of the commissions. The Midnight Judges Act allowed for certain writs such as mandamus to be filed directly with the Supreme Court in particular circumstances, a departure from the Court’s role in deciding appeals from lower courts.

It would have made political sense for Marshall to side with Adams, his political ally, and to force Madison to deliver the commission. However, for both personal and political reasons, Marshall calculated that forcing the Jefferson administration to deliver this commission to a Federalist Washington justice would cause upheaval within the ruling class. He likely concluded that such an exercise of judicial authority might make an already embryonic state even less stable. It would be an open declaration of war against Jefferson’s Democratic-Republican administration, which was already outraged by the proceedings. Marshall may himself have even been impeached if he had found for Marbury, given his personal involvement in the affair [10].

Marshall resolved this conflict: The Court dismissed the case for lack of jurisdiction, a procedural reason that still gave Chief Justice Marshall the opportunity to establish new legal precedent for judicial review, vastly expanding the power of the Court [11]. The ruling in Marbury v. Madison goes far beyond the question before the court because, despite dismissing the case, as Marshall used it to expand on the notion of judicial review and separation of powers. The wide-ranging discussion of the right of judicial review was not required by law and was, therefore, “obiter dicta,” meaning an incidental comment that does not technically itself establish precedent. Jefferson later referred to this discussion as the Chief Justice’s “obiter dissertation” on the powers of the Court.

The Court held that Madison’s refusal to deliver the commission violated the law, but it did not grant the writ of mandamus compelling Madison to deliver the commission. Instead, it held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, allows. Congress did not have the authority to effectively change the Constitution through regular legislation because the Supremacy Clause places the Constitution above all other laws. As Marshall explained in the Marbury decision, “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” [13].

What role does “judicial review” and “the separation of powers” play in class rule?

In this way, the Supreme Court’s power of review was established on not only weak but absolutely non-existent legal footing. Chief Justice Marshall, embroiled in ruling class factional disputes, simply decreed the existence of judicial review in what amounts to a side comment on a case that did not directly pose a question related to it. It has remained a sword against subsequent presidential administrations and Congresses. Today judicial review represents a central mechanism by which the capitalist class exercises its dictatorship. In essence, the Court assumed—in typically anti-democratic fashion—the ability to lay down the law of the land without any input from the people.

The precedent in this case directly enabled and impacted every Supreme Court ruling ever since. Fifty-four years later, for example, the Supreme Court declared a law unconstitutional for the second time [13]. That case, the Dred Scott case, allowed the Supreme Court to use the Constitution to deny freedom for Dred Scott, an enslaved man in the Wisconsin territory, where slavery was federally forbidden by law. Ultimately, the Constitution needed to be amended with the 13th and 14th amendments for the Dred Scott decision to be overturned.

The theory of judicial review has impacted legal systems around the world. As Judge Fullaga said, in the Australian case, Australian Communist Party v. The Commonwealth, “in our system the principle of Marbury v. Madison is accepted as axiomatic” [14]. It is the courts, rather than the legislature, which have the function of finally deciding whether a law is or is not legal.

But is the theory of judicial review and separation of powers sound from a working-class perspective? How does judicial review or separation of powers, as a matter of law under a capitalist state, impact the working-class struggle? Would we want to retain these vestiges of the capitalist state once the working class is in the driver’s seat?

Marx’s view of republicanism is the subject of much debate because it broke with the dominant form of republicanism in the later half of the 19th century. Republicanism, such as that embraced by Thomas Jefferson, drew inspiration from the classical ideals of ancient Greece and Rome, emphasizing the centrality of civic virtue and public participation in political life. While Marx recognized the importance of full participation in society and politics (in opposition to monarchy or aristocratic rule), he also criticized modern republicanism and the state as an essential tool for capitalist class rule [15]. He argued that even a representative government would be used as a tool for class rule: “Representation which is divorced from the consciousness of those whom it represents is no representation… it is a senseless contradiction” [16].

The United States’ “founding fathers” intentionally constructed a state apparatus to protect the ruling class from the ruled, and the Marbury decision represented a further step in that construction. Its repercussions are felt every time the Supreme Court uses the unquestionable authority that it granted to itself to take away our basic rights.

References

[1] G. Edward White, “The Constitutional Journey of ‘Marbury v. Madison,’” Virginia Law Review 89, no. 6 (2003): 1463-1573.
[2] Robert F. Nagel, “Marbury v. Madison and Modern Judicial Review,” Wake Forest Law Review 38, no. 2 (2003): 613.
[3] Marbury v. Madison, 5 U.S. (1 Cranch), 137 (1803). Available here.
[4] Ibid.
[5] Dobbs v. Jackson’s Women’s Health Organization, 597 U.S. (_) (2022). Available here.
[6] Curry S. Malott, A History of Education for the May: From Colonization and Slavery to the Decline of U.S. Imperialism (London: Bloomsbury, 2021), 68. Additionally, the Continental Congress, which had legislative powers until 1789, had no power to enforce the terms of any treaty, including the 1783 Treaty of Paris ending the war. States coined their own currency. There was a question of how to manage international trade. Most states refused to abide by the debt terms of the Treaty, and those that did faced rebellion. ​​William W. Van Alstyne, “A Critical Guide to Marbury v. Madison,” Duke Law Journal 1969, no. 1 (1969): 1-47; William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (Lawrence: University Press of Kansas, 2000).
[7] For more on the Federalist debates, see Crystal Kim, “Of, By, and For the Elite: The Class Character of the U.S. Constitution,” Liberation School, 19 October 2022. Available here.
[8] This struggle within the ruling class remained in flux, and the Midnight Judges Act was repealed in 1802.
[9] Though Jefferson did eventually direct the new Secretary of State, James Madison, to deliver commissions to six Republicans and six Federalists, eleven Federalist justices never received commissions.
[10] Wolfgang Hoffmann-Riem, “Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe,” German Law Journal 5, no. 6 (2004): 685-701.
[11] Michel Troper, “The Logic of Justification of Judicial Review,” International Journal of Constitutional Law 1, no. 1 (2003): 99-121.
[12] Marbury v. Madison.
[13] Dred Scott v. Sandford, 60 U.S. (19 How) 393 (1856).
[14] MRLL Kelly, “Marbury v Madison – An Analysis,” The High Court Quarterly Review 1, no. 2 (2005): 58–141.
[15] Karl Marx, “Communism and the Augsburg Allegmeine Zeitung,” “Comments on the Latest Prussian Censorship Instruction,” and “Proceedings of the Sixth Rhine Province Assembly. First Article. Debates on Freedom of the Press and Publication of the Proceedings of the Assembly of the Estates,” in Marx and Engels Collected Works (Vol. 1): Marx: 1835-1843 (New York: International Publishers, 1843/1975).
[16] Marx, “Debates on Freedom of the Press.”

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