Not the King's Bench

Article excerpt

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.


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. …