We are gathered here today
To get through this thing called life.
Electric word, “life,” it means forever
And that’s a mighty long time.
—Prince and the Revolution, Let’s Go Crazy
A buddy of mine has at times accused me of pining away for the day Marbury v. Madison gets overruled. I supposed in a sense he wasn’t far off.
Then I started to think about it.
I know a number of my readers have Juris Doctorates, but I’ll bet few of you have given much thought to Marbury since law school. It tends to be one of those things that’s taught academically, but in practice it’s sort of just accepted without discussion as part of the fundamental framework within which we have to function. Kind of like air—we all know it’s there and it’s important, but we don’t consciously worry much about it unless/until something goes wrong with it.
Perhaps it’s worth reviewing the history a bit, particularly for those who may have little more than a vague idea of Marbury and its significance.
During his lame-duck period, John Adams and the Federalists sought to pack the federal courts with a large number of newly-appointed Federalist judges and justices of the peace (even then, Liberal Statists sought to exercise power through the courts rather than legitimate electoral and legislative processes). Outgoing-President Adams made dozens of appointments on his last day in office, all of which were immediately confirmed by the outgoing Federalist Senate. Upon taking office the next day, new President Thomas Jefferson directed his administration not to deliver the signed commissions to the appointees, thus preventing them from assuming their positions. Among those denied his commission was William Marbury, who sued directly in the Supreme Court for a writ of mandamus—a judicial order compelling a public official to discharge his duty—ordering Secretary of State James Madison to deliver it.
Chief Justice John Marshall, writing for a unanimous (at the time, 4-0) Court, held that the Supreme Court lacked authority to grant the relief Marbury sought. The Judiciary Act of 1789 purported to grant the Supreme Court the power to hear suits for writs of mandamus as part of its “original jurisdiction”—that is, cases that could be brought directly in the Supreme Court, as opposed to on appeal from a lower court. Marshall found that this grant conflicted with Article III of the Constitution, which provides that the Supreme Court’s original jurisdiction extends only to cases involving certain public officials and States as parties, and that “[i]n all the other Cases” the Supreme Court’s jurisdiction was appellate. Thus, Marshall’s opinion on its face appears to be limiting the reach of the judicial branch, ceding an area as beyond the Court’s constitutional purview.
But notice the intellectual judo here. In surrendering a limited bit of power in this isolated instance—the ability to grant mandamus relief—Marshall in fact embraced a much broader one. His holding that the Judiciary Act’s grant of mandamus jurisdiction was unconstitutional secured for the Supreme Court (and, by extension, lower federal judges) the ability unilaterally to void acts of Congress (and the States under the Supremacy Clause) by claiming sole dominion over what is and is not allowable under the Constitution:
“It is emphatically the province and duty of the Judicial Department to say what the law is.”
While this concept of “judicial review” was not new, Marshall’s opinion in Marbury cemented it forever into American jurisprudence.
The doctrine has a certain practical necessity to it. After all, someone has to determine what the Constitution says, and to enforce its limits. And this power of judicial review serves as an important check against the other two branches of government (although one might argue the Court gave it back over time with its Commerce Clause jurisprudence, culminating with Wickard v. Filburn and its progeny). Indeed, it is really the only backstop the minority has to defend against the capricious tyranny of the majority.
That was all well and good as long as the Court confined itself to applying the actual plain language of the Constitution as it is written. But later Courts began “interpreting” that language, often bending the actual text (or even “implying” (read: inventing) text) not to enforce the law, but to promote a progressive agenda. The Constitution ceased to be defined by the 6,000 or so words of the document itself (including Amendments), and instead by a maze of thousands of pages of case law.
(As an aside, just stop with this nonsense about the genius of the Constitution being its character as a “living and breathing document.” It either means what it says or it doesn’t. If its meaning can change with the whim of the time (or at least of a majority of the then-sitting Court), then it is in effect without any meaning at all. In a country founded upon the rule of law, where people govern their affairs based on the understanding that the same words that meant “XYZ” yesterday can be counted on to mean “XYZ” tomorrow, the supreme law of the land can’t be subject to amendment by vote of five (see Article V)).
While judicial review serves as a valuable check against Congress exceeding its power, there is no corresponding check against the judiciary in its use or abuse of that power.
Compounding this problem is Article III’s provision for lifetime appointments. The Founders created lifetime appointments for the judiciary for the sound reason of insulating the Courts from shifting political tides; judges need to be free to apply the law without fear of reprisal. This worked well in 1789 when average life expectancy was less than 40, and the chance of anyone appointed to the federal bench remaining there very long was low. You could only do so much damage.
But today life expectancy is around 80, and it is not uncommon for judicial appointees to remain on the bench 30 years or more. Justice Anthony Kennedy has 37 years on the federal bench, 24 of it in the Supreme Court. Justices Ginsberg and Breyer each have 31 years on the federal bench. District Judge Manuel Real (C.D. Cal.) tops the list of active federal lower court jurists with 46 years of judicial service. Among federal judges with senior status, I count nearly forty with between 40 and 51 years (yes, some of those are Eisenhower appointees) on the federal bench. What this means is absent impeachment—and that’s rare—federal judges often stay around a long time, which can spell real trouble if they are inclined to stray from constitutional moorings with no effective check.
I don’t think the Framers foresaw our modern dilemma. There needs to be some form of check against rogue judges perverting the Constitution. I might suggest an Amendment establishing a protocol of periodic re-confirmation by a simple majority in the House. Maybe something like every 6 years for District Courts, every 8 years for Courts of Appeals, and every 10 years for the Supreme Court, with a lifetime maximum of, say, 25 years at all levels combined. This regimen would afford some kind of relief valve to limit the damage that can be done by judges who cannot or will not confine themselves to the Constitution.
Although some term limit reform is in order, on reflection, I don’t think I’d overturn Marbury and its important check on Congress. As we sit here today, judicial review is our only meaningful hope of putting the brakes on Obamacare. For all their campaign trail bluster, neither Mitt Romney, nor Rick Santorum, nor Newt Gingrich can repeal it if elected, because Presidents don’t have that power. And it’s unlikely that there will be a sufficient swing in Congress any time soon to repeal it legislatively. The judicial backstop of Marbury is all we have left to save our Constitution, if it’s not already too late.
And if the elevator tries to bring you down—go crazy.