In Federalist No. 78, Alexander Hamilton called the judiciary the weakest of the three branches, the least dangerous. Then came the Supreme Court case of 1803. Chief Justice John Marshall's landmark ruling in Marbury v. Madison established judicial review, transforming the court into a co-equal branch of government capable of striking down acts of Congress.

Key Takeaways

• Hamilton called the judiciary 'the least dangerous branch' in Federalist No. 78, it could neither enforce laws nor control spending

• Adams's 'midnight judges' appointments, made in the final hours of his presidency, set off the constitutional crisis

• Chief Justice Marshall found a third path: deny Marbury his commission while simultaneously asserting the court's power to strike down acts of Congress

• The 4-to-0 ruling (two justices were ill) established judicial review, the Supreme Court's power to declare laws unconstitutional

• Marbury v. Madison set the precedent for later rulings on slavery, segregation, abortion rights, and more

Sign up here to be the first to know about new History250 releases, content & resources!

FAQ - Frequently Asked Questions

Q1: What is judicial review and why does it matter?

Judicial review is the Supreme Court's power to declare acts of Congress or the executive branch unconstitutional. Established by Chief Justice John Marshall's ruling in Marbury v. Madison (1803), it transformed the Supreme Court from the 'least dangerous branch', as Hamilton called it in Federalist No. 78, into a co-equal branch of government capable of checking both Congress and the president.

Q2: What were Adams's 'midnight judges'?

In the final hours of his presidency, outgoing President John Adams made a flurry of judicial appointments to fill courts with Federalists before Thomas Jefferson took office. The commissions were signed and sealed but not all delivered in time. Jefferson ordered his Secretary of State James Madison not to deliver the remaining commissions, including one to William Marbury, triggering the constitutional crisis that became Marbury v. Madison.

Q3: How did Marshall rule on Marbury's commission?

Marshall took a brilliant third path. He affirmed that Marbury had a legal right to his commission, but then ruled that the section of the Judiciary Act of 1789 that gave the Supreme Court authority to issue the order was unconstitutional, it conflicted with Article 3 of the Constitution. By striking down that provision of the law, Marshall denied Marbury his commission while simultaneously establishing the court's far more important power: judicial review.

Q4: What major Supreme Court decisions followed Marbury v. Madison?

The precedent of judicial review established in 1803 shaped American history for centuries. In the 1857 Dred Scott decision, the court ruled black Americans had no right to sue in court. In 1954, Brown v. Board of Education declared segregated schools unconstitutional. In 1973, Roe v. Wade established a right to abortion. In 2022, Dobbs v. Jackson overturned Roe. All of these landmark decisions flowed from the principle Marshall established in Marbury v. Madison.

The Least Dangerous Branch

In Federalist Paper No. 78, Alexander Hamilton described the relative power of each of the three branches of government. The executive branch had the power of the sword, it enforced laws and wielded the military. The legislative branch held the power of the purse, the authority to tax the public and approve government spending. The judiciary had no power to enforce its decisions. It was, as Hamilton argued, the weakest branch, or, as he added, the least dangerous of the three. Then came the Supreme Court case of 1803: Marbury versus Madison. With the court's landmark decision, the least dangerous branch wielded more power than Hamilton and the founders had anticipated. The Constitution Marshall was interpreting had been written less than two decades earlier, as we cover in our episode on the Constitutional Convention.

The Midnight Judges

In 1801, America had just weathered a fiercely contested presidential election. Thomas Jefferson, a Democratic-Republican, had defeated the incumbent John Adams, a Federalist. In the twilight hours of his presidency, Adams made a flurry of judicial appointments known as the midnight judges. Among them was William Marbury, designated a justice of the peace for the District of Columbia. However, the commissions for these appointments, though signed and sealed, were not all delivered before Jefferson took office. Under direct orders from Jefferson, his Secretary of State James Madison refused to deliver the remaining commissions.

Marbury turned to the Supreme Court, seeking a judicial order compelling a government official to perform an act required by law. At the helm of the Supreme Court was Chief Justice John Marshall. Like Jefferson and Madison, Marshall was a Virginian, in fact, he was Jefferson's cousin. Unlike the president and secretary of state, he was a Federalist, the political party of the now former President John Adams. Up to this point in the republic's short history, there had not been a major Supreme Court decision. Prior to his appointment to the court in 1801, John Marshall had no experience as a judge. The political feud underlying the case grew out of the events we cover in our episode on the Election of 1800.

Marshall's Third Path

Now, Marshall and the justices faced a crossroads. If they ordered Madison to deliver Marbury's commission, Jefferson would likely refuse, thus undermining the authority of the fledgling Supreme Court. If they refused Marbury's request, it would likely appear as if the court was bowing to executive pressure. Marshall, who wrote the court's decision, chose a third path. In his landmark ruling on February 2nd, 1803, he first affirmed that Marbury had a legal right to his commission.

He then delved into Congress's Judiciary Act of 1789, the very law that granted the Supreme Court the power to issue writs of mandamus in such cases. Marshall declared that while the act appeared to grant the court the power to issue such a writ, that particular provision was in direct conflict with Article 3 of the Constitution, which defined the Supreme Court's original jurisdiction. The Constitution, Marshall asserted, was the supreme law of the land, and any act of Congress that contravened it was null and void. Thus, while denying Marbury his commission, Marshall simultaneously asserted the revolutionary principle of judicial review, the power of the Supreme Court to declare an act of Congress unconstitutional.

The Precedent That Shaped America

There were six members of the Supreme Court in 1803. The final vote in Marbury, however, was 4 to 0. Two of the justices did not participate in the deliberations, Justices Alfred Moore and William Cushing had been ill. All four of the justices who decided Marbury were Federalists. George Washington had made three of the appointments: William Paterson, Samuel Chase, and Bushrod Washington. Marshall was appointed by John Adams. Marbury did not get his commission and the executive branch was not forced to act.

More importantly, a great precedent had been set. Marbury versus Madison transformed the court into a co-equal branch of government, capable of checking the power of both the legislative and executive branches. Five decades later, the Supreme Court ruled that black Americans, free or enslaved, were not citizens and had no right to sue in court. A century later, in 1954, the court declared segregated schools illegal. In 1973, the court expanded privacy to include a woman's right to terminate a pregnancy and denied the unborn the right to life. But in 2022, it overturned that earlier decision. Such scope of power over executive and legislative authority, over slavery, segregation, and life itself, was established in 1803, when four men: Chief Justice Marshall and three of his fellow justices, set the precedent of judicial review. The least dangerous branch's greatest power. The same year as this ruling, Jefferson dramatically expanded the country, as we cover in our episode on the Louisiana Purchase.