Judicial Review

Dear Readers, We should have three co-equal avatars of power in our national (and upon which states are modeled) government. Unfortunately, Congress has become impotent and feckless, increasingly tied up in political knots over the past three decades. This has resulted in an ascendant Executive Branch, checked only by the Courts.

We were a very young nation back in 1803 when Chief Justice John Marshall first posited the Supreme Court as the final arbiter on the constitutionality of the acts of the other 2 branches of government in the pivotal decision of Marbury vs. Madison.  In reaching his conclusion, he borrowed a facet from our inherited English Common Law judicial philosophy, where even the Crown answered to the English Courts.  

His pronouncement was “It is emphatically the province and duty of the judicial department to say what the law is.”  Thus, the idea that the courts had the final interpretation of our statutory scaffolding.  As Justice Robert Jackson succinctly put it in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” 

The Court needed to fashion this political theory because of a patronage dispute it was asked to decide. In Thomas Jefferson’s 1800 triumphant Presidential election, John Adams and his Federalist Party recognized that there was a changing of the guard to the Jeffersonian-Democratic Party or Democratic-Republican Party. 

The Federalists stood for a strong national government championed by Alexander Hamilton.  It was strongest in the mercantile New England states.  If you will, it was the party of nascent “Big Business.”  By 1800, the party was in a 20-year death knell, eventually morphing into the Whig Party of Henry Clay and then the Republican Party of Abraham Lincoln.

Jefferson’s Party promised a new way.  Its moral champion was James Madison, who eventually transitioned into calling the Democratic Party and was positioned as the advocate of the “common man.”  I was a representative of the agrarian South, coopted by the “State’s Rights” pro-Slavery political memes of John Calhoun.

This regional political clash had its roots in the Federalist Papers and the birth of our Constitution.  On its way to political Siberia, the Federalists tried to preserve its waning power by stacking the courts and governmental structure with its adherents.  They ramped up the political patronage machine to new wattage levels.

Patronage is the reward of political supporters with plum federal appointments.  For much of your young nation’s history, we had horror stories of fraud and abuse from Reconstruction to Tammany Hall to Teapot Dome.  It plagued this nation for years before and after John Marshall’s reign as Chief Justice.  The passage of laws protecting the jobs of Civil Servant bureaucrats from the winds of political change tamed the pendulum brought by changes in administrations.

The legal issue decided by Chief Justice Marshall started with the patronage appointment of William Marbury as Justice of the Peace by John Adams.  This was done in the “lame duck” interim between Thomas Jefferson’s election and taking office.  By a quirk of fate, the actual seal of office was not transmitted to Mr. Marbury before John Adams returned to private life.  James Madison, who was by then the Secretary of State, refused to deliver the seal and appointment – Mr. Marbury sued to force him to perform this ceremonial act.

Chief Justice Marshall was faced with a conundrum.  He could have “tapped out” on the Supreme Court’s role in, essentially, a political dispute and retired it as an effective governmental partner.  Instead, he asserted the Court’s role by finding that the law permitting Mr. Marbury to challenge his lack of commission was unconstitutional.  Practically, bowing to political realities, Madison’s inaction was affirmed by the Court, yet the Court still asserted its authority.

Ever since, the Supreme Court has issued opinions and everyone listens.  Granted, President Andrew Jackson famously challenged the Supreme Court to enforce its decision concerning Native American removals.  Still, President Truman stood down over seizing the steel mills, President Eisenhower enforced desegregation, President Nixon turned over the White House Tapes, and Al Gore conceded an election.

This is all relevant today, as the Trump Administration is trying to reshape government by firing civil servants in violation of Federal law.  Courts are stopping this.  The ultimate question is if the Trump Administration will abide by 220 years of precedent establishing the courts as a final legal arbiter.  This might be the start of a brave new day.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.