What did Marbury do next?

[Edward A Hartnett]

Section 13 of the Judiciary Act of 1789 had purported to give the Supreme 
Court the "power to issue . . .  writs of mandamus, in cases warranted by 
the principles and usages of law, to any courts appointed, or persons 
holding office, under the authority of the United States."  Section 11, 
which set forth the jurisdiction of the circuits courts, did not have any 
such provision.

McIntire v. Wood, in 1813, was a short unanimous decision interpreting the 
Judiciary Act of 1789.  Referring to Marbury, counsel for the plaintiff 
argued that it "has been decided, that the power to issue a mandamus . . . 
 does not belong to the Supreme Court; it must, therefore, be in the 
Circuit Courts."  The Court rejected that argument, stating: 

"Had the 11th section of the judiciary act [of 1789] covered the whole 
ground of the constitution, there would be much reason for exercising this 
power in many cases wherein some ministerial act is necessary to the 
completion of an individual right arising under laws of the United States, 
and the 14th section of the same act would sanction the issuing of the 
writ for such a purpose. But although the judicial power of the United 
States extends to cases arising under the laws of the United States, the 
legislature have not thought proper to delegate the exercise of that power 
to its Circuit Courts, except in certain specified cases."

McClung v. Silliman, in 1821, was also unanimous.  One of its reasons for 
concluding that the state courts could not issue mandamus to a federal 
officer was that Congress had not given such power to the federal courts.

Is there any reason to think that a court in 1803 would have interpreted 
the Judiciary Act of 1789 differently?  I don't see why.  The statutes are 
not any more favorable to such jurisdiction in 1803 than in 1813, and (as 
far as I can tell) the political pressure against such jurisdiction is 
stronger in 1803 than in 1813.

As for the Courts in DC:

Surely Marshall did not envision that Marbury would apply for mandamus to 
a district court in DC.  Federal district courts at that time were courts 
of admiralty and minor criminal jurisdiction. 

The Circuit Court in DC was the court that was eventually held, in a 
divided decision in 1838, to have mandamus jurisdiction.  But that court 
had been created by the same act that created Marbury's office, and given 
the same jurisdiction as the circuit courts created by the Judiciary Act 
of 1801.  By the time Marbury was decided, of course, the circuit courts 
created by the Judiciary Act of 1801 had been abolished. 

Thus we are asked to imagine Marbury going into a court created by the 
same statute that created his office, and asking that court to issue 
mandamus to a member of the Cabinet, based on an argument that this court 
had the jurisdiction -- not equal to that of all the old-and-now-restored 
circuit courts created by the Judiciary Act of 1789 and again staffed by 
justices of the Supreme Court riding circuit -- but of the 
new-but-now-abolished circuit courts, created in 1801 and destroyed in 
1802.  For this was the reasoning of Kendall: that when Congress gave the 
circuit court for DC the jurisdiction of a circuit court, it was referring 
to the jurisdiction of the circuit courts created in 1801 and destroyed in 
1802, and that such jurisdiction survived the repeal of the Judiciary Act 
of 1801. (Kendall also relied on the circuit court in DC inheriting the 
common law jurisdiction of the Maryland courts, another difficult argument 
to be making in the legal/political atmosphere of 1803.)  Those circuit 
judges, of course, knew that every other circuit judge in the nation had 
been tossed out of office, that the Supreme Court Justices had accepted 
their removal (by taking their places on circuit) and that those displaced 
circuit judges had no remedy. 

It strikes me as doubtful that the circuit court of DC would have 
anticipated the Kendall majority by 35 years and granted Marbury relief.
 

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335
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