What the Supreme Court Knew in 1803

I’m deep in the book editing process today, rereading old, indeed very old Supreme Court cases and the history surrounding them. In some ways, this book is a romp through my favorite parts of legal history. In others, it deals with the most pressing issues we face in our current moment of constitutional decline. And I’m torn between being eager for you to read it now and having just a little more time to research, write, and edit to make sure my words convey the precise meaning I want you to have.

There are little tidbits in the old cases, like this one, which I’m removing from its context in Marbury v. Madison—the granddaddy of the cases establishing the principle of judicial review—because the sentiment it expresses perfectly matches how I’m feeling: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”

If you’ve read Marbury, you know the Court actually goes on to deny the plaintiff, a deserving justice of the peace, the remedy he sought, even though they acknowledge he is entitled to it, for the very sensible reason that the Supreme Court lacked the authority to bestow it. They lacked that authority because the Court (and, for that matter, Congress and the President) cannot just do as it will. It must abide by the Constitution.

It can be hard to read jurisprudence as it was written back in 1803, but stick with me on this part:

“The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it … .”

Indeed, to what purpose is the Constitution if the legislature or the executive branch isn’t beholden to the law?

The Court writes that if “a legislative act contrary to the Constitution is not law … then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” The same is true of actions taken by a president.

Perhaps the Supreme Court should go back and reread Marbury and take up the reminder that a president who acts beyond the power the Constitution assigns to him, even to the point of scoffing at the courts’ authority over him, must be reminded of it. To be fair, the Court sits in a difficult moment, much like the one Chief Justice Marshall faced when he wrote Marbury, a moment where the risk that the executive branch would simply ignore the Court’s decision was palpable. Rather than ordering the executive branch to take an action he strongly suspected they would not or backing off and reducing the Court to irrelevance, he found a different path, a path that created the concept of judicial review and reinforced the courts’ importance.

Our Supreme Court Justices are learned in the law. They understand the delicate balance of power between the branches of government and the nuances of the authority each branch of government possesses. They know, most of all, that the power the government possesses is on loan from the people, who give it up not to create kings and a court, but to ensure their best interests are pursued. As the Court in Marbury put it, “the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.”

The Court has the difficult job of navigating another perilous moment in our nation’s history. They are, or should be, the people most knowledgeable, most capable, and most able to restrain a runaway president. Just like we do not let politicians get away with behaving shamefully because we’ve come to understand that they have no shame, we must refuse to approve when the Court shies away from its duties, hiding behind the no-opinion decision process of the shadow docket to allow the president to avoid accountability for violating court orders.

They work for us. The job may not always be easy. They will not be able to avoid a confrontation with this White House over the scope of presidential power, unless they are willing to concede that the president has the powers of a king, because that is clearly what Donald Trump is trying to acquire. But like the Court in Marbury v. Madison, it is their job to chart a path forward for democracy.

We’re in this together,

Joyce

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