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Senate Obstruction Is No Way To Mark Anniversary of Marbury v. Madison

Decided on February 24, 1803,, which established the Court's power to declare laws unconstitutional, is ordinarily the first or second Supreme Court decision taught to law school students.
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This week marks the 213th anniversary of one of the most significant and well-known United States Supreme Court decisions ever, Marbury v. Madison. Decided on February 24, 1803, Marbury, which established the Court's power to declare laws unconstitutional, is ordinarily the first or second Supreme Court decision taught to law school students, so virtually every lawyer remembers, fondly or traumatically, the case as a critical part of their professional education. As leaders of the United States Senate publicly proclaim their intention to engage in an unprecedented dereliction of constitutional duty, the anniversary of Marbury has even broader resonance and relevance in 2016.

Marbury is a peculiar and unique case, both in what Chief Justice John Marshall's opinion says and in what it does not. While concluding that William Marbury was entitled to the job whose denial he was challenging, Marshall ultimately held that the Court lacked the authority to award Marbury a remedy for that denial. Yet, in asserting that powerlessness, Marshall claimed for the Court an even more potent authority -- the right to determine that federal laws, duly enacted by the Congress and the President, are unconstitutional and therefore unenforceable. Marshall held that a federal law, purporting to provide the Court with the ability to provide the remedy Marbury sought, violated the Constitution.

This power of "judicial review" established in Marbury v. Madison remains today the most critical authority exercised by the Supreme Court. Every year, in highly anticipated and impactful decisions, the Court reviews and determines whether a number of federal, state, and local laws comply with the Constitution. However, that critical power cannot be exercised if eight Court justices deadlock four to four on a constitutional question.

Requiring the Court to operate with only eight justices by refusing to vote on confirmation of a presidential nominee - as Senate Republicans have indicated they intend to do -- effectively strips the Court, in numerous and important cases, of the power of judicial review established 213 years ago this week in Marbury v. Madison. Moreover, the Senate Republicans' hamstringing of the Court would extend for over a year, and perhaps much longer depending on the next Senate's reception of the next President's nominee.

The case's resonance today extends beyond the Senate leadership's peculiar commemoration of Marbury -- by vowing to indefinitely limit judicial review on the Court today. Chief Justice Marshall's opinion in Marbury, in the nature of most court opinions, leaves out some interesting context. The case arrived at the Court out of the nation's very first ever changeover in governing political party.

In 1800, Thomas Jefferson and his new political party defeated John Adams, in his re-election bid, and his ruling Federalist Party. In reaction, Adams scrambled to fill judicial vacancies - including some new judgeships created by the lame-duck Federalist congressional majority. In the midnight rush, William Marbury's commission to be a justice of the peace in Washington, D.C. went undelivered. In the case that bears his name, Marbury asked the Court to decide whether the new Jefferson Administration was required to deliver his judicial commission, which Jefferson's Secretary of State, James Madison, refused to do.

In effect, then, this most foundational of Supreme Court decisions grew out of the petty politics of an immature nation - a party freshly voted out of office sought to embed its partisans in positions of judicial authority, and the new majority party responded by refusing to seat one such official by withholding his commission. Today, in a time when our democracy is clearly much more mature, Republican senators are doing the opposite of what the Federalists did over two centuries ago by seeking to block a President, whose successor has not been elected or even nominated yet, from fulfilling his constitutional duty to appoint justices to the Supreme Court, simply because only one year remains in his final term as Chief Executive. In the political playbook, this might be termed a "reverse Marbury" play.

Of course, our country has certainly progressed - or so we might hope - beyond the tactics of the nation's very first party transition of power. Other political tactics of that time - such as the blatant gerrymander, for example - have plainly lost legitimacy in polite company.

Yet, beyond its hoary quality, the real audacity of the Senate Republicans' "reverse Marbury" lies in how long it would leave the Supreme Court hobbled in its ongoing responsibility of judicial review. In this sense, it is actually its "reverse Marbury" (the decision) character that makes the tactic so constitutionally abhorrent. And hardly an appropriate commemoration of the anniversary of such a singularly significant Court decision.

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