99 selected to be a justice of the peace by outgoing Federalist President John Adams. Marbury’s commission had been signed and sealed just hours before Adams left office, but it had not been delivered. The case arose when Marbury petitioned the Supreme Court to issue a writ of mandamus ordering the new Republican Secretary of State, James Madison, to deliver the commission. The Supreme Court ruled that William Marbury had a legal right to his commission and that a mandamus to the Secretary of State was an appropriate remedy, thus delineating the Court’s duty to examine certain actions of the executive branch. At the same time, however. Chief Justice Marshall explained that the Court could not issue such an order to the Secretary of State in this instance, because the act of Congress giving the Supreme Court the power to issue a mandamus (The Judiciary Act of 1789, Section 13) had unconstitutionally enlarged the original jurisdiction of the Court beyond that permitted by Article III. The members of the Supreme Court knew full well that if they had simply ordered Madison to deliver the commission to Marbury, their order would have been ignored and the position of the Supreme Court weakened. The justices also knew that they themselves might even have faced more dire political consequences, namely, impeachment. Marshall and his brethren had to find a way institutionally to affirm the importance of the Supreme Court without creating opportunities for it to be hurt. Marshall responded brilliantly to this challenge. By separating law and politics in Marbury, - that is, by declaring that there are certain executive actions which are purely discretionary and political that should not be examined by the Supreme Court, but that there are ministerial executive actions that do fall under its purview— and by forthrightly enunciating the doctrine of judicial review, Marshall captured for the Court supremacy among the three branches of the national government in interpreting the Constitution. While appearing to remove the Court fromparticipation in the realm of partisan politics, the Chief Justice defined an area, the “law”, in which it was the duty of the Court to provide the guidelines under which the federal government would function. Although Marshall seemed to be eliminating controversial political issues from consideration by the Court, in reality he assumed for the Court the power to decide which issues belonged in the sphere of politics and which should be denominated issues of law. This was indeed a bold proposition, but he was able to proclaimit in Marbury only by denying the Court jurisdiction in the case. The assertion of the power of judicial reviewover legislative acts in Marbury V. Madison occasioned no great surprise or reaction from Congress or the American people. What did create a stir was Marshall’s attempt to tell the Secretary of State what to do while declaring that the Court had no power to order himto do it. Marshall’s lecture on the proper behavior of executive officers was not well received by President Jefferson and his cabinet, but as they had not been ordered to do anything, there was no way they could show their disdain
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