SEPARATION OF POWERS AND THE STRATEGIC
JUDICIAL REVIEW WAS BORN of a conflict between the courts, Congress, and the president. After Thomas Jefferson and the National-Republicans won the election of 1800, the lame-duck Federalists expanded the jurisdiction of federal circuit courts with the 1801 Judiciary Act (Turner 1961). Seeing this act as a Federalist effort to thwart the newly elected National-Republicans, they repealed it by passing the 1802 Judiciary Act. However, National-Republicans feared that the 1802 act would be declared unconstitutional by a Supreme Court led by Federalist Chief Justice John Marshall. Therefore, they abolished the Supreme Court’s June and December terms and established a February term for the Court, effectively precluding the Court from reviewing the constitutionality of the 1802 act for almost a year. Jeffersonians in Congress also impeached and removed Judge John Pickering and delivered numerous speeches critical of the Court to signal to the Court the danger of infringing upon the will of the elected branches.
In this context, William Marbury asked the Court to issue an order (writ of mandamus) instructing President Jefferson to appoint him as Justice of the Peace for the District of Columbia. Although the Senate had confirmed Marbury and President Adams had signed the appointment the night before his term ended, Marbury had not received the appointment. Upon assuming office, Jefferson instructed his secretary of state, James Madison, to withhold the final appointment.
Marbury v. Madison (1803) put the Supreme Court in a delicate situation. The justices almost certainly wanted to grant the writ given that every justice on the Court was a Federalist (J. Smith 1996; Epstein and Knight 1998). And if they did not grant the writ—which was explicitly provided for by statute—they would call the rule of law into question (J. Smith 1996, 318). At the same time, Chief Justice Marshall knew that if the Court issued the writ, Secretary of State Madison would likely ignore it, exposing the Court as powerless.
Marshall solved the dilemma by recasting the choice before the Court (Knight and Epstein 1996; O’Brien 2000; Breyer 2010). Marshall’s opinion declared that even though Marbury was entitled to his appointment,