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The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court.

The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supr eme Court

By Cliff Sloan and David McKean

"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." Marbury v. Madison, 5 U.S. 137 (1803).

With these words from the historic decision in Marbury v. Madison, the Supreme Court, led by Chief Justice John Marshall, boldly claimed the right of the judiciary to be the final arbiter of the meaning of the Constitution. While this concept is often taken for granted today, authors Cliff Sloan and David McKean make clear in their new book, The Great Decision, that the notion of judicial review was far from resolved during the first years of the republic. In fact, with its undefined powers and lack of real leadership, the judicial branch was largely viewed as the junior partner among the three branches. That would soon change, however, with John Marshall's appointment by John Adams in 1801.

Marshall, interestingly, was actually Adams' second pick for Chief Justice. (The first, Oliver Ellsworth, felt the office lacked "energy, weight, and dignity.") After being confirmed, Marshall, through force of will, began to alter the way the Court conducted business in ways both large and small.

Along with fostering a more collegial atmosphere among the Court's members. Marshall also started the practice of the justices wearing black robes while in session. More importantly, Marshall encouraged the Court to issue single, joint opinions, as opposed to each judge issuing a separate opinion, as had previously been the custom.

With respect to the Marbury decision itself, the book gives the reader a detailed, behind-the-scenes look at the issues and parties involved. William Marbury was one of several judicial appointments made by Adams during the last days of his presidency. Democratic-Republicans, including President-elect Thomas Jefferson, were outraged by Adams' obvious attempt to pack the judiciary with Federalists. When it was later discovered that some of the commissions for the "midnight judges" had not officially been delivered, Jefferson declared the undelivered appointments void. In response, Marbury sought a writ of mandamus to compel the new Secretary of State, James Madison, to deliver Adams' signed appointment. In its opinion, the Supreme Court excoriated Jefferson for failing to deliver Marbury's commission. Nevertheless, the decision explained, the Court was without power to compel Madison to act because it lacked jurisdiction to issue a writ even though Congress had expressly given it such power via the Judiciary Act of 1789. This law, the Court wrote, was unconstitutional since it attempted to broaden their jurisdiction beyond that specifically granted by the Constitution in art. III. Marshall, brilliantly, had granted Jefferson a victory, while ensuring that the judicial branch would have the power of judicial review.

The Great Decision is recommended for anyone--lawyer or nonlawyers --interested in the history of our democracy. It's available from for $27.95.

Scott Ragan is a staff attorney with the First Judicial Circuit, Shalimar.

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Author:Ragan, Scott
Publication:Florida Bar Journal
Article Type:Book review
Date:May 1, 2009
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