Presidential Commission on the Supreme Court of the United States
sought—a writ of mandamus—was the proper remedy.[31] The problem, Chief Justice Marshall held, was that the statutory provision on which Marbury relied to establish the Court’s jurisdiction to grant the remedy was invalid because it exceeded Congress’s authority. The Court therefore lacked the ability to grant Marbury his remedy, Chief Justice Marshall determined.
The reason for this seeming weakness, however, was that the Court possessed a far stronger weapon: the ability to declare acts of Congress unconstitutional. This was the power of judicial review. The authority that Congress sought to give the Court in Section 13 of the Judiciary Act of 1789 “appears not to be warranted by the constitution,” Chief Justice Marshall stated.[32] Then followed what became one of the most quoted passages in American constitutional law:
It is emphatically the province and duty of the judicial department to say what the law is… So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.[33]
As many scholars have noted, judicial review was not new to American law in 1803.[34] Courts—including the Supreme Court, state courts, and, even earlier, colonial courts—had long claimed the authority to invalidate legislation. The Constitution did not refer explicitly to judicial review. But the combined force of Article III, the Supremacy Clause of Article VI, longstanding Anglo-American practice, and the nature of the written Constitution suggested to Chief Justice Marshall and others that judicial review was within the Court’s power.[35] In Marbury, Chief Justice Marshall established judicial review as a principle of American law, claiming for the Court—in the name of the Constitution and the people—the power “to say what the law is.”[36] Yet Chief Justice Marshall’s opinion in Marbury was ambivalent, insofar as it paired this claim of interpretive power with a disavowal of the power to order Madison to deliver Marbury’s commission.
In addition, the power of judicial review that Chief Justice Marshall asserted did not necessarily amount to judicial supremacy. As one leading constitutional law casebook puts it, judicial review “means that a federal court can review statutes (or executive actions) for constitutionality and refuse to enforce them in court proceedings if it finds them unconstitutional.” Judicial supremacy, in contrast, “means that the federal courts’
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