The Activist

by Lawrence Goldstone

  He responded with an astonishing passage. “To this objection, which is of recent date, it is sufficient to observe, that practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.”15

  With this pronouncement, Paterson had completely abdicated the Court’s role to “say what the law is,” the centerpiece of Marshall’s Marbury opinion. Instead, if one follows this reasoning, the law was simply what it had been for twelve years, whether or not it ran counter to the Constitution.16 Put slightly differently, part of “saying what the law is” was deciding on a case-by-case basis whether or not the Court would use legal precedent, constitutional interpretation, or political expediency as the basis for its ruling. That this degree of rule by whim was what the Convention delegates had in mind is hard to swallow. *

  As confounding as this abandonment of principles is to constitutional law, it further illuminates Marshall’s decision to absent himself from the case. Even for one with Marshall’s talents, the difficulties of, in effect, overruling oneself just one week after a watershed pronouncement was a bit much. As it was, Marshall had made the grand pronouncement and Paterson had been left to snivel around it. Marshall’s sense of history was too acute for him to be unaware of which decision would be remembered.

  * Although four years later, Samuel Chase would press this principle sufficiently to get himself impeached.

  * Nor was there any criticism of the decision in Congress. The decision in the case that had so dominated the proceedings in the previous weeks was received with nary a whisper in the House or the Senate.

  † As they did not. The Marshall court never again invoked the power of judicial review.

  * Criticism by current-day strict constructionists of activist judges follows quite closely along these very lines.

  TWENTY-THREE

  WHAT THE LAW ISN’T

  LITTLE DOUBT EXISTS that Marshall believed firmly in the principles he espoused in Marbury. His commitment to the notion of constitutional supremacy was unwavering, from his actions on the Executive Council in Virginia to his work as an attorney to his three-decades-long tenure as chief justice. But little doubt also exists that Marshall’s decision in Marbury was not simply an exposition of those principles, but also an exercise in practical politics, to which his commitment was unwavering as well. Time and again throughout his career, Marshall exhibited a willingness to bend, mold, and even contort both his beliefs and the law to the exigencies of the day. The decision, like the man, was an amalgam.

  As to which of these two masters Marshall demonstrated a greater loyalty—in Talbot v. Seeman, and United States v. Schooner Peggy, and again in Marbury—he was more than willing to subordinate law to politics. But rarely if ever did he subordinate politics to law.

  Thus, to determine the case’s potential use to succeeding generations of jurists, it is necessary to separate the written opinion in Marbury from whatever underlying ideology Marshall evokes in the decision. Only Marshall’s actual words, after all, can be used as legal precedent. Justice Scalia would rightly scoff at any judge who claimed a right to go beyond the page and use as a basis for argument what he or she was certain another judge meant in an opinion.

  Yet, according to Leonard Levy, the written opinion in Marbury was not only “poorly reasoned,” but of “slight merit, distorted reasoning, and galloping activism.”1 And as to whether the opinion should stand as precedent: “Though the Court’s technical competence was not evident, its judicial politics—egregious partisanship and calculated expediency—was exceptionally adroit.”2 Levy added, “Marshall grossly misinterpreted the statute [the Judiciary Act of 1789] and Article III [of the Constitution], as well as the nature of the writ, in order to find that the statute conflicted with Article III so that he could avoid issuing the writ without appearing to buckle before political enemies.” He might have added that, by keeping Marbury’s claim before the Supreme Court and not redirecting it to whatever court should have had jurisdiction, Marshall ensured that nobody else would issue the writ either.

  Despite its undeniable flaws, however, the Marbury decision is far more often heaped with praise than skewered with criticism. The characterization “brilliant” is used in too many sources to cite. And the view that Marshall overreached is also not universal. “Far from constituting an innovative decision, each important aspect of the opinion is grounded on familiar principles of legal interpretation,” one scholar noted.3 Former chief justice Rehnquist called the decision “a remarkable example of judicial statesmanship” that “turned what otherwise would have been an obscure case into the fountainhead of all of our present-day constitutional law.”4

  Yet the view that the Marbury opinion is unsound and cynical remains widespread as well. Even Marshall’s best-known biographer characterized it as “perfectly calculated audacity.”5 Another respected commentator called Marbury “a masterwork of indirection, a brilliant example of Marshall’s ability to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another.”6 High praise certainly, but more for political acuity than legal acumen. The description is hardly that of a man who refused to compromise his public trust to advance a political agenda.

  Even Chief Justice Rehnquist, after his flattering description of his predecessor, added this remarkable observation: Marshall ruled, according to the chief justice, that “there is nothing that the Supreme Court can do about [Marbury’s claim] because Congress tried to give the Supreme Court more authority than the Constitution would permit. The doctrine of judicial review is established, but in such a self-denying way that it is the judiciary’s authority which is cut back.” In the multitude of Marbury analyses, “restraint” is rarely a term used to describe the opinion. Claiming for the Court the right of final say in constitutional interpretation hardly cuts back its authority. But then, a chief justice would be unlikely to cast aspersions on the very decision that was the basis for his greatest power.

  What Marshall seemed to demonstrate in his Marbury opinion was that, when the power “to say what the law is” is unchecked, it is as prone to abuse as any other unchecked power. Marshall did not so much “say what the law was” as “say what he wanted the law to be.” And further, Marshall claimed the right in the future to impose his view of what the law should be at any time he chose.

  When the Marshall court’s record is viewed not simply as a string of disembodied renderings of judgment, but rather as part of the overall political landscape, that the Court was as partisan a branch of government as the executive or the legislative is difficult to deny. Marshall’s rulings, Marbury chief among them, carved out a role for the Court that expanded its power, both legal and political. Two centuries later, little evidence is to be found that the Court has become less of a political entity and more the impartial arbiter that the framers envisioned. If one backs away from legal analysis, then, and takes the view that many Supreme Court decisions are, in fact, instruments of policy—a view widespread in the public at large—then for originalists to adopt one of the most egregious examples of legislating from the bench as the basis for their one deviation from literal adherence to the Constitution is questionable at best.

  Even a complete repudiation of Marbury does not, however, mean that the doctrine of judicial review should necessarily be scrapped, and that a movement should begin to relegate the Supreme Court to the position of weakness that Hamilton anticipated when he penned Federalist 78. For those who believe in a “living” Constitution, those who are today considered broad constructionists, the document evolved with the times. Judicial review, regardless of how it was initiated, has become an integral facet of our system of laws, for which history and
precedent has rendered its genesis irrelevant. As Justice Paterson observed in Stuart, “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system . . . have indeed fixed the construction . . . This practical exposition is too strong and obstinate to be shaken or controlled.”7

  If, however, one subscribes to Justice Scalia’s philosophy, it is difficult to see how a continuing defense of the right of judicial review can be maintained. The Marbury decision seems to meet every test of an originalist’s view of bad law, certainly as corrupt as Roe v. Wade. In fact, with their continued insistence that judicial review as enunciated in Marbury is a legitimate facet of textualist doctrine, originalists have instead demonstrated that the Court is every bit the political institution now that it was in 1803. When textualists cite Marbury as a justification for an expansion of the Court’s power, while, in the same breath, decrying “activist” judges who use the Constitution to expand civil liberties, they are engaging in their political rather than their judicial function.

  If the judiciary is a political branch of government, no different in that regard from the legislative or the executive, that the Court’s power should be subject to the same rigorous checks as the other two branches surely follows. If the Supreme Court is the final arbiter of constitutionality, the rarely used and unwieldy threat of impeachment as its only check is disproportionately small. If the founders had meant for the Court to actually have such power, it seems highly probable that additional checks—a three-fourths vote of Congress to override a decision, or finite terms for the justices rather than lifetime appointments—would have been almost certainly included as a restraint.

  Nor does the argument hold that, in restricting the Court to appellate jurisdiction, the Constitution has provided a check, since the Court cannot choose which laws to examine but must wait for a case to come before it. In fact, once the Court’s immense unchecked power was established, advocates of any position, on any law, could manufacture a challenge, knowing that the Court could choose to hear it. *

  That the activist Marshall is so embraced by originalists, then, should come as no surprise. He is, after all, one of their own.

  * In Bush v. Gore, the Court chose, in effect, to arbitrate a presidential election.

  APPENDIX I

  MARBUY V. MADISON 5 US (1 CRANCH) 137

  Mr. Chief Justice MARSHALL delivered the opinion of the Court.

  At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this case requiring the Secretary of State to show cause why a mandamus should not issue directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia.

  No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it require a complete exposition of the principles on which the opinion to be given by the Court is founded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the Court, there will be some departure in form, though not in substance, from the points stated in that argument.

  In the order in which the Court has viewed this subject, the following questions have been considered and decided.

  1. Has the applicant a right to the commission he demands?

  2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

  3. If they do afford him a remedy, is it a mandamus issuing from this court?

  The first object of inquiry is:

  1. Has the applicant a right to the commission he demands?

  His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia.

  After dividing the district into two counties, the eleventh section of this law enacts, “that there shall be appointed in and for each of the said counties such number of discreet [sic] persons to be justices of the peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years.”

  It appears from the affidavits that, in compliance with this law, a commission for William Marbury as a justice of peace for the County of Washington was signed by John Adams, then President of the United States, after which the seal of the United States was affixed to it, but the commission has never reached the person for whom it was made out.

  In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.

  The second section of the second article of the Constitution declares, “The President shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for.”

  The third section declares, that “He shall commission all the officers of the United States.”

  An act of Congress directs the Secretary of State to keep the seal of the United States, “to make out and record, and affix the said seal to all civil commissions to officers of the United States to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.”

  These are the clauses of the Constitution and laws of the United States which affect this part of the case. They seem to contemplate three distinct operations:

  1. The nomination. This is the sole act of the President, and is completely voluntary.

  2. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate.

  3. The commission. To grant a commission to a person appointed might perhaps be deemed a duty enjoined by the Constitution. “He shall,” says that instrument, “commission all the officers of the United States.”

  The acts of appointing to office and commissioning the person appointed can scarcely be considered as one and the same, since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision in the second section of the second article of the Constitution which authorises Congress “to vest by law the appointment of such inferior officers as they think proper in the President alone, in the Courts of law, or in the heads of departments”; thus contemplating cases where the law may direct the President to commission an officer appointed by the Courts or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which perhaps could not legally be refused.

  Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own.

  It follows too from the existence of this distinction that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer, and if he was not removable at the will of the President, would either give him a right to his commission or enable him to perform the duties without it.

  These observations are premised solely for the purpose of rendering more inte
lligible those which apply more directly to the particular case under consideration.

  This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable, it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still, the commission is not necessarily the appointment; though conclusive evidence of it.

  But at what stage does it amount to this conclusive evidence?

  The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him.

  Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself, still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete.

  The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act, and, being the last act required from the person making it, necessarily excludes the idea of its being, so far as it respects the appointment, an inchoate and incomplete transaction.

  Some point of time must be taken when the power of the Executive over an officer, not removable at his will, must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. This idea seems to have prevailed with the Legislature when the act passed converting the Department of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary of State shall keep the seal of the United States, “and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President: . . . provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States, nor to any other instrument or act without the special warrant of the President therefor.”