Who was Chief Justice Marshall more likely to side with, Marbury or Madison? Why?

Question

Marbury vs. Madison (1803) court case

Answer 1

~If you know anything of the political background giving rise to the case, the answer is obvious. If you have read the case, it is all the more so.

The case wasn't about the appointments. It was about John Adams' attempt to perpetuate Federalist power after the Jeffersonians (the Democratic-Republicans) won at the polls. Marshall makes it clear in the decision what he thought of his cousin's (Thomas Jefferson) refusal to deliver the commissions or to instruct his attorneys general, first Levi Lincoln then James Madison to do so. One has to wonder what Marshall's role was in bringing the case to a head. He was, after all, John Adams' Secretary of State who did not get the commissions delivered before Adams left office. While I don't necessarily suggest there was collusion between Adams, Marbury and Marshall in withholding the commissions and plotting to bring the case in Supreme Court rather than in District or Circuit Court, I cannot discount the possibility that the whole affair had been planned. The Founding Fathers were as capable of dirty politics as was Richard Nixon.

In any event, Marshall should have recused himself from the case. Due to his very major role in the underlying circumstances of the controversy, there is no way he could have been impartial. In fact, he could have been (and should have been) called as a witness in the case. No ethical judge would put himself into such a position. Under even the loosest interpretation of judicial ethics, a judge today hearing such a case under like circumstances would be removed from office (or, at the very least, be censored and sanctioned). Ah, but what are mere ethics in consideration of the political games that were being played. The very survival of the nation was at stake, given the constitutional crisis that Adams and Jefferson had created. Marshall resolved the crisis by pointing out all the reasons that Jefferson had acted wrongly, then by shooting Federalists in the foot and saying that Jefferson could get away with it, at least in his court.

Marshall ducked his oath and obligation in the decision. The case was properly before the Supreme Court. The constitutionality of the Judiciary Act of 1789 should never have been addressed. It was absolutely irrelevant to the litigation until Marshall needed an out and latched onto it. Whether that was wisdom or cowardice on Marshall's part is not particularly germane. It certainly must have come as a shock to Adams and the Federalists who had appointed him.

Marshall was well aware that his cousin Thomas Jefferson (and TJ's Secretary of State, James Madison) would never have complied with the mandamus that Marshall clearly knew he must issue. What then would have happened? Jefferson's impeachment and conviction? The Court would have ceased to exist as a viable branch of government? Congress would have revolted, ignoring both the executive and judiciary? The nation would have been thrown into revolution or civil war? All of the above? [In essence, Marbury v Madison is one of the first salvos of the Civil War, but that's another issue.]

The right, power and authority of the Supreme Court to hear the case are crystal clear under Article III of the constitution. Had Marshall wanted to, or dared to, make a ruling in the case, he would have, could have and should have done so, consequences be damned. The country would then have had to deal with the collapse of the government and democracy that followed. Instead, Marshall went to great lengths to explain how Jefferson, through Madison, had placed himself above the law and had abrogated his oath, his duty and the law of the land. Then, to save face, not to mention the power and sanctity of his judgeship and his Court, he manufactured the bogus argument that the case was brought under the auspices of Judiciary Act, rather than under the Constitution itself and that Congress lacked the power to give him that jurisdictional authority. That allowed him to say Madison (and through him, Jefferson) was dead wrong but that there was nothing he could do about it. It also avoided the primary question of what would happen next when Jefferson ignored him.

Having gone that far, he then took it upon himself to claim that the Constitution must be strictly construed, then made the biggest power grab in Constitutional history. Judges had always assumed the right to declare laws unconstitutional and Marshall refers to a precedent on point in American jurisprudence in the Marbury decision itself. However, the constitution is silent as to the issue of judicial review and there is sufficient latitude in Articles I and II for the legislative and executive branches to be the final arbiter of constitutional questions, or at least in those questions of first impression. Marshall closed those doors. Now, in a land of government of the people, by the people and for the people, the Court has the final say, whatever might be the will of the people, subject only to the tedious, cumbersome and near impossible process of constitutional amendment. And the Justices serve by appointment, for life or however long they choose to sit the bench. By (wrongfully) claiming his Court lacked the power and jurisdiction to hear the case, Marshall established Court authority as first among equals. Calmer heads thereafter prevailed and the other branches let him get away with it. Marbury packed up and went home, rather than to litigate in the (per Marshall) 'proper' court.

Marshall knew well that the case was not about the commissions. Had it been, Marbury would have avoided the issue entirely by simply petitioning his case in Circuit Court, either before bringing it in Supreme Court or after receiving the decision. Marshall could never have argued the constitutional issue if the case had reached him on appeal. Likewise, Marshall could have (should have) done the legally correct thing by acknowledging the Court's jurisdiction under Article III of the constitution. The case was about the attempted power grab of the Federalists as they left office and the power grab of the Democratic Republicans as they came into office. Rather than to put himself in the middle of the fray and knowing he had life tenure on the bench, and fearing that the future of the Court and the country were at stake, Marshall went for the biggest power grab of all and he ignored the rights of the litigants.

The law was on Marbury's side. The Constitution was on Marbury's side. In principle, as is clear from the dicta of the decision, Marshall was on Marbury's side. The real issues were far too great for Marshall to have decided accordingly so he ducked his responsibility, made a baseless ruling and secured the Court's eminence and his own stature and probably saved the Republic. In answer to your question then, Marshall sided first with John Marshall, then with the Supreme Court and then with the American Republic. His words favor Marbury and his ruling favors Jefferson/Madison but his result favors the Court.

As to which party would have been invited to Marshall's house for dinner, Marbury, Adams and Marshall were all staunch Federalists while cousin Tom and his SecState Madison were avowed anti-Federalist Democratic Republicans.


Aside to Sprouts Mom: I would very much like to read the dissenting opinion. Chief Justice John Marshall wrote the majority opinion and Associate Justices William Paterson, Samuel Chase and Bushrod Washington joined in that majority opinion. Associate Justices William Cushing and Alfred Moore took part in neither the consideration of the case nor in the decision. Those six men constituted the entire Bench. By whom, then, was your phantom dissent filed? If you are either a lawyer or a historian, might I be so bold as to suggest that some time in the library may be in order? [You might want to start with 5 U.S. 137; 1 Cranch 137]

Answer 2

I agree with Matt.
In order to understand just how divisive the decision was, it's really necessary to read the dissenting as well as the Court's decision.
Same goes with ANY other case you may be given to take a look at. Often, more often than not actually, what was once the dissent becomes the law of the land.

Answer 3

well, as we know, he decided that this case was not meant for the court. however, during this explanation, he said "although they should be appointed..." showing that he would probably favor Marbury. In order to show judicial power, (also governmental power) he made the right decision by ending the case that way.