By Jennifer Nicoll Victor, Ph.D., George Mason University
The sources of judicial authority come from three primary places. The Constitution and the Judiciary Act of 1789 are the first two. But, the most interesting source of authority originated in a case that was heard in the early 1800s, in which the power of the Supreme Court was widened. It was the case of Marbury v. Madison.
The Constitution and Congress
First and foremost, there is the authority provided by the United States Constitution. Article I was about the Congress and legislative authority, Article II of the Constitution is about the presidency and executive authority, and we find the terms of judicial authority in Article III.
If we take a look at the text of Article III of the Constitution, we’ll see that the text is quite brief—just three small sections. In short, there is very little guidance in the Constitution that describes exactly how the judicial system will be set up, just that there will be one.
Therefore, the second primary source of judicial authority comes from one of the very first laws the Congress ever passed, known as the Judiciary Act of 1789. This important piece of legislation is how the Congress outlined the form and functions of the federal judicial system. The framework established in this act comprises the foundation of the federal judiciary.
But, there is still one thing on which the Constitution and the Judiciary Act are silent, and that is whether or not the Supreme Court, or any federal court for that matter, has the power to declare laws unconstitutional. That particular, and important, power was established in a very clever twist of history.
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The Writ of Mandamus
The power to declare laws unconstitutional is known as judicial review, and it was established in the 1803 case known as Marbury v. Madison. The story of how this came about is pretty gripping. It begins when the Congress passed the Judiciary Act of 1789. One of the parts of this law granted federal courts the authority to issue what was known as a writ of mandamus.
A writ of mandamus is a court order that directs an official of the government to take a specific legal action. For the first 12 years of America’s existence under the new Constitution, no one challenged, utilized, or even noticed this particular judicial authority.
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John Adams and Thomas Jefferson
Then, in 1800, there was a presidential election in which the incumbent President John Adams was defeated by his challenger, Thomas Jefferson. Back then, there was a significant lag of several months between when presidential elections were certified on January 6th, and when a new president was inaugurated, in part because transportation and re-location was much more challenging back then.
So, Adams took advantage of this lag period sought. He nominated 32 judges to the federal judiciary and the last-minute nature of these appointments made them known as the ‘midnight judges’.
The Undelivered Commission
At that time, when you were appointed by the president to a post, the Secretary of State delivered the commissions to the appointees. This was John Marshall, but delivering commissions was a physically demanding job, and some commissions could not be delivered before Jefferson was inaugurated. One of the commissions that Marshall delivered was the one that made Marshall himself the chief justice of the Supreme Court. However, a commission that didn’t get delivered was to William Marbury, appointing him a Justice of the Peace.
After Jefferson was inaugurated, he instructed his secretary of state, James Madison, not to deliver the remaining commissions. Then, Marbury sued the federal government requesting that the Court issue a writ of mandamus to force Madison to deliver his commission. The case wound up at the Supreme Court, where John Marshall was now the Chief Justice.
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The Ruling in Marbury v. Madison
In his ruling, Marshall argued that Marbury had a legal right to his commission because President Adams had legally appointed him to Justice of the Peace. This satisfied Marbury, as well as Adams and his fellow Federalists. However, Marshall also decided that the Supreme Court could not issue the writ of mandamus to compel Jefferson’s Secretary of State, James Madison, to hand over the commission, as the power of the Court to issue the writ was itself unconstitutional.
Marshall reasoned that, when Congress passed the Judiciary Act of 1789, it extended the Court’s jurisdiction beyond what Article III established, and that Congress did not have the power to change the Constitution through legislation. Only a constitutional amendment could provide the Court with more authority of this type, not an act of Congress.
The Expansion of Judicial Review
In ruling that the Court did not have the authority to issue writs of mandamus, Marshall created a much broader power for the Supreme Court— judicial review. By declaring a part of the Judiciary Act of 1789 unconstitutional, Marshall set a precedent that the Supreme Court had the power to decide whether or not laws are constitutional. In doing so, Marshall solidified the idea that the Judiciary was a co-equal branch of government.
So, this apparent act of limiting the Court’s power is actually one that expands its power. While the Supreme Court did not exercise its judicial review power all that frequently at first, the case of Marbury v. Madison granted the Supreme Court its most significant authority, which it retains to this day—the power of judicial review.
Common Questions about Marbury v. Madison
The terms of judicial authority in Article III of the Constitution. But there is very little guidance in the Constitution about how the judicial system will be set up, just that there will be one.
Through the Judiciary Act of 1789, the Congress outlined the form and functions of the federal judicial system. The framework established in this act comprises the foundation of the federal judiciary.
William Marbury was appointed a Justice of the Peace by President John Adams, but his commission was not delivered because the president had changed by then. Marbury sued the federal government, asking the Supreme Court to force James Madison, the Secretary of State, to deliver the commission.
