Marbury (was: grading Justices and Opinions)

[Bryan Wildenthal]

I am generally in agreement with David Cruz on this.  I would point out that
Van Alstyne's excellent article "A Critical Guide to Marbury v Madison,"
1969 Duke LJ 1, goes over pretty exhaustively the reasons why Marbury,
though a beautifully written opinion in many ways, and obviously of
surpassing importance, and very convincing (in my view) on the basic theory
of judicial review, also involved, as steps toward Marshall's ultimate goal,
some almost laughably unpersuasive, unnecessary, and plainly result-oriented
interpretations of both Art III's technical jurisdiction provisions and the
Judiciary Act of 1789.  Also, as Jefferson rightly complained, Marshall
indulged in some arguably unnecessary dicta to score points at the new
administration.  Alternative readings of Art III (fully consistent with
judicial review) could have given full meaning to all of the text while also
closing the dangerous loophole that seems (under Marshall's reading) to
allow Congress to curtail the Court's appellate jurisdiction.  However,
those alternative readings would not have enabled Marshall to do what he
obviously wanted to do in this case: enunciate the judicial review principle
while dodging any immediate confrontation with the Jefferson Administration.

Those who are really critical of Marshall might also argue that the one
great thing about Marbury, its powerful statement of the structural
constitutional case for judicial review, was not really an idea original to
Marshall.  I tend to give him credit for at least restating and elaborating
it very powerfully and for skillfully (if without perfect intellectual
honesty) seizing the opportunity to secure this important principle and the
rightful institutional position of the Court.  He helped ensured that the
Court would remain an important and independent counterweight to the
executive branch and Congress over the long term.  That was an act of
statesmanship in my view, even though I (like many other Con Law teachers)
have fun leading my class through exactly how shoddy much of the subsidiary
reasoning of Marbury is.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: David Cruz [mailto:dcruz at LAW.USC.EDU]
> Sent: Monday, March 12, 2001 11:12 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Marbury (was: grading Justices and Opinions)
>
>
> On Mon, 12 Mar 2001, shubha ghosh wrote:
>
> > Extracted from Prof. Cruz's comments:
> >
> > > showing little
> > > craftsmanship but perhaps craftiness, and his claims
> > > about the necessity
> > > of his interpretation of Article III are
> > > melodramatically overstated,
> > > indeed, bordering on patently false.
> >
> >
> > Not sure what truth or falseness has to do with it.
> > Falseness of what? I am a big believer in judicial
> > review so that view colors my comments.  [snip]
>
> To claim that Article III Section 2 would be meaningless if not given
> Marshall's favored interpretation is false; there are obvious
> alternative
> interpretations that would not treat that part of the
> Constitution as a
> useless bauble.
>
> As for Bush v. Bore, I haven't made any comparative claims
> about them, so
> I'm not sure why you're asking me about whether Marbury's
> worse than it.
>
> Maybe Sandy Levinson could better articulate than I the reasons why
> Marbury, though tremendously significant, is a poorly crafted opinion.
>
> -David B. Cruz, USC Law (Cal.)
>