The Marbury mystery: why did William Marbury sue in the Supreme Court?

• Author: Bloch, Susan Low

In 1801, when William Marbury petitioned the Supreme Court to issue a writ of mandamus ordering Secretary of State James Madison to deliver his commission as justice of the peace, he initiated one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ at the time? The short answer is "yes." Rather than making an unsuccessful attempt to invoke the original jurisdiction of the United States Supreme Court, I have learned that he could have brought his suit in the then newly-created Circuit Court of the District of Columbia. Did Marbury know of this possibility? Would the Circuit Court have granted the requested writ of mandamus? As this essay will show, the answer to both these questions is "probably yes." That being so, the intriguing--indeed, mysterious--questions surrounding Marbury's choice of forum warrant further examination.

First, a brief recap of the facts of Marbury v. Madison. (1) In the waning days of the Federalist Administration of President John Adams, the outgoing Federalist Congress enacted the "Act Concerning the District of Columbia," authorizing the president to appoint as many justices of the peace for D.C. as he thought "expedient." Each would serve for five-year terms. (2) President Adams nominated forty-two justices--twenty-three for Washington County on the Maryland side of the Potomac River and nineteen for Alexandria County on the Virginia side. (3) After the Senate confirmed and the President signed the commissions, it was the responsibility of the Secretary of State, John Marshall, to affix the Great Seal of the United States to the commissions and see to their delivery. The signing and sealing presented no problem, but time did not permit delivery of all forty-two commissions. Thomas Jefferson assumed the presidency on March 4, 1801. Appalled at Adams' last minute "court-packing," Jefferson ordered his Secretary of State to withhold the undelivered documents. (4) Four of those so deprived, William Marbury, Dennis Ramsay, William Harper, and Robert Townsend Hooe, (5) then sued in December 1801 in the United States Supreme Court, seeking a writ of mandamus ordering Secretary of State James Madison to deliver their commissions. (6)

In a landmark decision establishing the tenets of judicial review of both legislative and executive actions, Chief Justice John Marshall, (7) writing for a unanimous court, divided his analysis into three parts. First, he held that the petitioners were entitled to their commissions. Second, he concluded that the Secretary of State could be the subject of judicial process, including a writ of mandamus. Finally, he held that a writ of mandamus was the appropriate remedy for the plaintiffs. But, said Marshall, the Supreme Court could not constitutionally be given original jurisdiction to issue a writ of mandamus in this type of case. Because this case was not within one of the two areas of original jurisdiction specified by Article III of the Constitution, the Court could act only as an appellate court in this matter. (8) And because Section 13 of the Judiciary Act of 1789 (9) purportedly conferred on the Supreme Court original jurisdiction to issue writs of mandamus in this type of case, Section 13 was unconstitutional. Thereupon, the Court explained at length why it was justified in rendering ineffectual an Act of Congress that it found inconsistent with the Constitution. Finally, because it had no jurisdiction in this case, the Supreme Court denied the relief sought by Marbury and his colleagues. (10) This was a masterful opinion. Only by asking the questions in the order he used, with jurisdiction last, and by creatively finding a conflict between Section 13 of the Judiciary Act and Article III of the Constitution, (11) could Marshall assert the judicial power to review acts of both the legislative and the executive branches without ordering anyone to do anything--and thereby avoid the risk of defiance. (12) It was, by any standards, a monumental opinion, far more important than the issue that inspired it. (13)

All this is generally well known. But, as suggested above, the saga of Marbury v. Madison raises several intriguing questions.

1. Was there an alternative forum for Marbury's suit? (14)

   Having asked this question from the day I started teaching this case in Constitutional Law I, I am delighted finally to be able to answer it. The answer is: "Yes, without a doubt." On February 27, 1801, in the same act in which Congress created the office of Justice of the Peace for the District of Columbia, it also created the Circuit Court of the District of Columbia, a three-judge court with both original and appellate jurisdiction. (15) President Adams immediately appointed three men to serve as judges: James Marshall, younger brother of John Marshall, the recently-appointed Chief Justice of the Supreme Court; William Cranch, nephew-in-law of President Adams, who would become Chief Judge in 1806 and would serve on the Circuit Court for 54 years until his retirement in 1855; and Thomas Johnson as Chief Judge. (16) Johnson, however, declined the appointment. He had been one of the first Supreme Court Justices but had retired in 1793 because he found riding circuit too arduous. (17) At his retirement, he vowed not to accept any further public office, and accordingly declined Adams's appointment to the D.C. Circuit Court. Unfortunately for President Adams and the Federalists, there was no time for Adams to choose another, so it was President Jefferson who appointed the first Chief Judge of the Circuit Court, William Kilty. (18)

   Significantly, the Circuit Court of the District of Columbia was up and running at least as early as March 23, 1801. (19) Thus, there is no question the Circuit Court was in business when Marbury filed his suit during the United States Supreme Court's December 1801 term. Clearly, Marbury and his colleagues could have filed their action there.

2. Why didn't Marbury file his suit in the Circuit Court?

   The question is difficult to answer because it seems not to have been discussed by anyone, either then or now. But it is virtually impossible to believe that Marbury was unaware of the Circuit Court's existence. The Act creating that court, the Organic Act of February 27, 1801, was the same one that established Marbury's justice of the peace office. (20) The newspapers at the time printed the full text of the Act, including a description of both the Circuit Court and the office of justice of the peace. (21) Moreover, the same newspaper story that announced the appointment of Marbury and his forty-one brethren also heralded the appointments of the three judges for the Circuit Court of the District of Columbia. (22) In addition, Marbury's lawyer, Charles Lee, had been the Attorney General under Adams when the offices of justice of the peace and the Circuit Court were created and when these appointments were made. Thus, Marbury and his lawyer simply could not have been unaware of the creation and staffing of the Circuit Court of D.C. (23)

   Perhaps Marbury and his lawyer questioned whether the Circuit Court could lawfully issue a writ of mandamus to the Secretary of State. They may have thought Marbury needed to go to the highest court of the land. But there was no basis for such a conclusion. Indeed, as subsequent case law revealed, if they had such a concern they were doubly wrong: the Supreme Court could not issue the writ; the Circuit Court could.

   In 1837, the Circuit Court of the District of Columbia held in United States ex rel. Stokes et al. v. Kendall that it had the power to issue a writ of mandamus against an executive officer--and ordered Postmaster General Kendall to comply with his statutory duty to pay a government contractor, William Stokes, money owed him by the United States. (24) Stokes and his partners had contracted with the government; Congress had authorized the Solicitor of the Treasury to pay them, but the Postmaster General had paid only a portion of the amount Congress had authorized. The Circuit Court, in an opinion by Chief Judge Cranch--the same Judge Cranch who had been on the bench since its creation in 1801--issued a writ of mandamus ordering the Postmaster General to pay Stokes the remainder. (25)

   In concluding that it had the power to issue this order, the Circuit Court relied on the Act of February 27, 1801, the Act that had created the Circuit Court of the District and had given it "cognizance of all cases in law and equity, whether arising under the constitution or laws of the United States, or under the adopted laws of Virginia and Maryland, with the only condition that one of the parties shall be resident, or found within the district." (26) Cranch noted that, in creating this Circuit Court of the District of Columbia, Congress had given it "all the powers vested in the circuit courts, and the judges of the circuit courts," and that at the time of its creation, February 27, 1801, all the circuit courts did have these broad powers because the Judiciary Act of 1801, enacted two weeks earlier, had so provided. (27) Chief Judge Cranch concluded that even though Congress had the Judiciary Act of 1801 repealed in 1802, and had reinstated the prior, more restricted, jurisdiction of the circuit courts, (28) the repeal did not affect the powers of the Circuit Court of the District of Columbia because it had been established on February 27, 1801 and was unaffected by the 1802 repeal. (29) Cranch concluded that the Circuit Court of the District of Columbia was different from the other circuit courts. Cranch thus distinguished McIntire v. Wood, (30) in which the Supreme Court had found that, because of the repeal of the Judiciary Act of 1801, circuit courts generally did not have power to mandamus a government official. Said Judge Cranch for the D.C. court in Kendall:

   Here is a case in which a ministerial...