politics and Marbury v. Madison.

Thu Oct 20 12:42:43 PDT 2005

There are good reason's to reject  Bloch's argument, beyond the usual 
reasons to be skeptical of conspiracy theories.  As we have discussed 
earlier on the list, while the Supreme Court some 35 years later held that 
the DC Circuit Court -- but no other court in the nation -- had been given 
the power to issue mandamus to federal officials, that decision is hardly 
unassailable.  It relied on 1) a conclusion that the DC Circuit Court 
inherited the common law powers of the Maryland courts and 2) that the DC 
Circuit Court could rely on a statutory reference to the powers granted in 
the Judiciary Act of 1801, even though that act had been repealed. 
Moreover, as Richard Fallon has noted, it is "highly doubtful that the 
Court, in the politically charged atmosphere of 1803, would have upheld 
the authority of the D.C. courts to order mandamus relief for William 
Marbury against James Madison." 91 Cal. L. Rev. 1, 52 (2003).

Does anyone doubt that if Marbury had made such an attempt, the Republican 
Congress would have made clear that the DC Circuit had no such authority? 
Imagine if the Supreme Court or the DC Circuit in 1803 had held that the 
DC Circuit could issue mandamus to Madison because of the continuing force 
of the recently-repealed Judiciary Act of 1801 or its inherited common law 
power.  Isn't it likely that the judges of the DC Circuit would have met 
the same fate as the circuit judges appointed under the Judiciary Act of 
1801 and found themselves deprived of any court to hold?

Ed Hartnett
Seton Hall

marty.lederman at comcast.net 
Sent by: conlawprof-bounces at lists.ucla.edu
10/20/2005 01:14 PM

To
"Sanford Levinson" <SLevinson at law.utexas.edu>, <whoooo26505 at yahoo.com>, 
<mgraber at gvpt.umd.edu>, <ebraman at indiana.edu>
cc
lawcourts-l at usc.edu, conlawprof at lists.ucla.edu
Subject
Re: politics and Marbury v. Madison.

Not quite, Sandy:  The *final* message of Marbury (see Sue Block's 
article) is that Marbury has the right to go down the block to a different 
court and, with the SCOTUS's opinion in Marrbury v. Madison in hand, 
demand that that court issue a mandamus to Madison to grant Marbury his 
commission (a commission that is, btw, meaningless, because -- according 
to Marshall -- Marbury is an appointed judge whether he receives a 
commission or not).

Of course, Marbury doesn't have any desire to receive the commission, or 
to act as a judge.  He's *not* left "high and dry" -- because he wasn't 
looking for any relief.  Instead, it appears that his entire lawsuit was a 
set-up to enable Marshall to opine:  (i) that the federal courts can issue 
a mandamus to Executive officials to abide by the law as announced by the 
courts; and (ii) that the SCOTUS can ignore the operation of a federal 
statute if it disagrees with Congress's "assessment" of that statute's 
constututionality (scare-quotes because there was no such legislative 
assessment of the constitutionality of Marshall's idiosyncratic reading of 
the Judiciary Act).

In this respect, Marbury and Marshall, working as a team, got precisely 
what they were seeking, and the tactical way in which they did so was a 
stroke of sheer brilliance.  Or so I've been told.  ;-)  And I think that 
*is* a story worth telling to first-year students (just in case they're 
not cynical enough about the courts when they arrive), if for no other 
reason than to stimulate them to think about whether the SCOTUS's means 
justify its professed lofty ends in a case where the students *approve* of 
the ends (in contrast to Dred Scott and, for many, Bush v. Gore, where 
history did not look kindly on the Court's attempt to "settle" the 
political-constitutional debates).

For what it's worth, in this, my first semester of teaching ConLaw, I 
covered both Marbury *and* Prigg and Dred Scott (as well as the requisite 
three weeks on McCulloch and the bank controvesy) -- as you might suspect, 
I'm using Sandy's own casebook.  Of course, because at least an additional 
month ought to be spent on separation of powers, that doesn't leave much 
time to teach the so-called Commerce Clause "doctrine" (and almost no time 
at all to teach the "dormant" Commece Clause), but one can't have it all . 
. .

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To: <whoooo26505 at yahoo.com>, <mgraber at gvpt.umd.edu>, <ebraman at indiana.edu>
Cc: lawcourts-l at usc.edu, conlawprof at lists.ucla.edu
Subject: Re: politics and Marbury v. Madison.
Date: Thu, 20 Oct 2005 16:06:13 +0000
Content-Type: Multipart/mixed; 
boundary="NextPart_Webmail_9m3u9jl4l_12321_1129828483_1"

Simply to repeat the main point:  I have no doubt that one can make a 
great show out of teaching Marbury for a week.  The question is the 
opportunity cost.  The sad fact is that I all too easily imagine hosts of 
students who are never introduced to Prigg and Dre Scott, and I think 
that's a disgrace with pernicious consequences for the health of a polity 
in which lawyers play a disproportionate role.

While I'm at it, let me admit that I literally cannot understabd why 
anyone would be "inspired" by Marbury:  Marshall may thunder about the 
wrong fone to Marbury, but the final message is that he's left high and 
dry, either because of a legal technicality involving jurisdiction 
(assuming you take his argument seriously, which of course I don't) or 
because of a ruthless calculation that Marbury's right takes second place 
to protecting the institutional interest of the Supreme Court and/or the 
personal interests of judges who wanted to avoid impeachment.  I find 
Marbury as inspiring as Prigg.

Sandy
- Sanford Levinson
(Sent from a Blackberry)

Simply to repeat the main point:  I have no doubt that one can make a 
great show out of teaching Marbury for a week.  The question is the 
opportunity cost.  The sad fact is that I all too easily imagine hosts of 
students who are never introduced to Prigg and Dre Scott, and I think 
that's a disgrace with pernicious consequences for the health of a polity 
in which lawyers play a disproportionate role.

While I'm at it, let me admit that I literally cannot understabd why 
anyone would be "inspired" by Marbury:  Marshall may thunder about the 
wrong fone to Marbury, but the final message is that he's left high and 
dry, either because of a legal technicality involving jurisdiction 
(assuming you take his argument seriously, which of course I don't) or 
because of a ruthless calculation that Marbury's right takes second place 
to protecting the institutional interest of the Supreme Court and/or the 
personal interests of judges who wanted to avoid impeachment.  I find 
Marbury as inspiring as Prigg.

Sandy
- Sanford Levinson
(Sent from a Blackberry) 

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