Speaking at a public birthday party for an icon, even if the honoree is one or two hundred years old, can be a surprisingly tricky business. Short of turning the party into a roast, it seems rude to criticize the birthday boy too harshly. On the other hand, it is at least as important to avoid unwarranted and exaggerated praise. (1) The difficult task, then, is to try to say something remotely new or interesting while navigating that strait.
The conference organizers did make it easier for me in one respect: My assignment does not involve those ideas for which Marbury is invoked as an icon. It is for others to wrestle in well-worn trenches with exalted arguments about judicial review and its overgrown descendent judicial supremacy, while trying to avoid unseemly criticism or fawning praise. I, on the other hand, am to address more technical issues involving section 13 of the Judiciary Act of 1789 and its provision granting the Supreme Court the power to issue writs of mandamus.
The proper interpretation of section 13 has continued to be of interest long after Marbury, largely because the question of judicial review of an Act of Congress only arises after that Act is interpreted. That is, a court must first interpret a statutory provision before it is confronted with the choice of whether to follow that statutory provision or instead follow a constitutional provision that would call for the case to be decided differently.
As anyone attending this birthday party already knows, the court in Marbury interpreted section 13 of the Judiciary Act of 1789 to provide the Supreme Court with original jurisdiction to issue the prerogative writ of mandamus to federal officers such as Secretary of State James Madison, but refused to issue such a writ because to do so would exceed the original jurisdiction permitted the Supreme Court by Article III of the Constitution.
For years, scholars have contended that Marshall's interpretation of section 13 was seriously flawed, if not downright dishonest. Recent scholarship, however, has defended Marshall's interpretation of the statute as correct. My point today is not so much to attempt to resolve this dispute, but instead to suggest that what is particularly worth celebrating on Marbury's birthday is that the Supreme Court cared what that statute said, believed that what that statute said mattered, and rejected a view of itself as this nation's equivalent of the King's Bench.
SECTION 13 OF THE JUDICIARY ACT OF 1789
The Judiciary Act of 1789 was no minor piece of legislation. Although commonly known by that name, its formal name better reveals its importance, "An Act to establish the Judicial Courts of the United States." Until it was signed into law on September 24, 1789, the government under the new constitution had no judicial branch. Congress had convened on March 4, 1789, although obtaining a quorum took a bit longer, and President Washington was inaugurated on April 30, 1789. (2) But until Congress and the President acted to create the federal judiciary, it did not and would not exist.
This was obviously true as to the inferior federal courts, which are constitutionally optional. Unless and until the lawmaking process specified in Article I created inferior federal courts, there would be no such courts. But it is also true as to the Supreme Court, which the constitution requires but says remarkably little about, omitting even such obviously necessary specifics as the number of judges that constitute the Supreme Court. Until an Act of Congress spelled out such specifics, there would be no Supreme Court either.
The Judiciary Act of 1789, then, created the federal judiciary. It provided that the Supreme Court would consist of a chief justice and five associate justices. (3) It divided the country into thirteen districts, with a district court and district judge for each district. (4) The districts were then grouped into three circuits, called the eastern, middle, and southern circuits. (5) But it did not provide for the appointment of any circuit judges; the Supreme Court justices and the district judges were the only national judicial officers under the Judiciary Act of 1789. It did not even create circuit courts for each of these circuits, which is why we never hear of cases decided by the United States Circuit Court for the Middle Circuit. Instead, it provided for a circuit court for each district (other than the districts of Maine and Kentucky) consisting of two justices of the Supreme Court and the local district judge. The district courts were given jurisdiction of minor criminal cases, as well as admiralty and maritime cases, (6) while the circuit courts were given jurisdiction of diversity suits, and suits by the United States (both subject to a five hundred dollar amount in controversy requirement), plus the entire range of criminal cases. (7) The Supreme Court had appellate jurisdiction over certain civil actions decided by the circuit courts, (8) as well as appellate jurisdiction over final decisions by state courts rejecting federal claims and defenses. (9)
All of these federal courts were given the power to issue all writs, "not specially provided for by statute," which were "necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law," and all of these judges were given the power to grant writs of habeas corpus to inquire into the cause of commitment of those in federal custody. (10)
The point of this thumbnail sketch of the Judiciary Act of 1789 is to provide context for Marbury, both by recalling how different the federal judicial structure at that time was from the structure we now seem to take for granted, and by situating section 13 of the Judiciary Act in the Act as a whole. Let us turn, then, to section 13 itself.
Section 13 of the Judiciary Act of 1789 provides: And be it further enacted, that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under authority of the United States. (11) The key language for Marbury, of course, is in the final sentence, providing that the Supreme Court "shall have 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."
Many scholars have argued that Marshall's interpretation of section 13 was wrong, and that Marshall should have interpreted section 13 not to apply in Marbury at all. If section 13 did not apply, of course, there would be no basis for reaching the constitutional question decided in Marbury. Indeed, for some, Marshall's interpretation of section 13 was so egregiously wrong that it can only be understood as a wilful misinterpretation of section 13 undertaken precisely in order to reach the constitutional question. (12)
There are two variants of this criticism, (13) On the first variant, the mandamus power in section 13 applies only in cases within the Supreme Court's appellate jurisdiction. Since the provision regarding mandamus is contained in the same sentence as the provision regarding appellate jurisdiction, the mandamus grant could be understood as simply an aspect of that appellate jurisdiction. If the Supreme Court has appellate jurisdiction--because the case is one of the "cases herein after specially provided for"--then it may issue writs of mandamus to carry out that appellate jurisdiction. If not, it has no power to issue writs of mandamus. Since Marbury was not one of those appeals "herein after specially provided for," this line of argument leads to the conclusion that there was no statutory basis for issuing the writ and Marbury should have lost without the court ever deciding a constitutional question.
On the second variant, the mandamus power in section 13 is a remedy available to the Supreme Court in both original jurisdiction cases and in appellate jurisdiction cases, but only if there is already a case properly before the court. (14) As Professor Amar puts it, "the mandamus clause is best read as simply giving the Court remedial authority--for both original and appellate jurisdiction cases--after jurisdiction (whether original or appellate) has been independently established." (15) This interpretation would likewise call for Marbury to lose on statutory grounds rather than constitutional grounds, because there was no other basis (independent of the mandamus clause itself) for him to invoke either the Supreme Court's original or appellate jurisdiction. The difference is that this variant would read section 13 as permitting the Supreme Court to issue writs of mandamus in original jurisdiction cases, such as ambassador suits.
Marshall's interpretation of the statute has recently been...