Module 07 Sections

Fig 7.1- United States Supreme Court Justices (2010)

If the Constitution is vague in discussing the powers of the presidency, it is downright evasive when it comes to the role of the Supreme Court. Article III of the United States Constitution is silent regarding the qualifications for the position of Supreme Court Justice, and does not even specify how many Justices will sit on the Supreme Court. The Supreme Court’s most important power, judicial review, is not even mentioned in the Constitution. To say that the institutional design of the Court is minimal is an exercise in understatement. The Court was described in The Federalist as the “least dangerous” branch, but it has proven to be a very powerful actor in American life.

Begin, as always, with the United States Constitution. You can find Article III here:

Article III is by far the shortest of the three institutional articles. Compared to the legislative and executive articles, the Framers said very little about the federal judiciary. This branch, more than either of the others, was left to develop on its own.

The Constitutional Design of the Judiciary and The Federalist

Article III of the United States Constitution establishes that the judicial authority of the United States is vested in a Supreme Court and inferior courts that Congress may ordain and establish. It also specifies the Supreme Court’s jurisdiction. In all cases involving ambassadors, public ministers, and those in which states are a party, the Court has original jurisdiction. In other cases, the Supreme Court has appellate jurisdiction.

The vast majority of cases in the federal courts have nothing to do with federal policy. Federal courts simply facilitate a process by which settled law is applied to specific cases. There are times, however, when courts, the Supreme Court specifically, do make national policy. We all know that it is the legislature’s constitutional duty to make policy through the legislative process, but the Court makes policy as well…every time it interprets the Constitution in a new way.

More than 130 federal laws have been struck down by the Court over the years. This is the power of judicial review, and this power is without question the greatest power the Court possesses. It is a power that the Supreme Court took for itself, following the logic presented in Federalist 78, in the 1803 case Marbury v. Madison.

Judicial Review

By way of introduction, judicial review is the power of a court, in this case the Supreme Court, to declare an act of the legislature unconstitutional. While this power is not asserted in the Constitution, it is discussed thematically in Federalist 78. Indeed, Federalist 78 provides us with the most detailed explanation of the role of the United States Supreme Court. Have a look at that number from The Federalist, which you can find here:

Federalist 78: An Overview

Fig 7.2- The Supreme Court Front Dusk

Although Publius examines the judiciary in Federalist numbers 78 through 83, his most serious and important treatment of the judicial branch is contained in number 78. In that number, he contends that the judiciary will be “a citadel of the public justice and of the public security,” and introduces the particular case of a “limited Constitution,” one with “certain specified exceptions to the legislative authority.” It is the judge’s duty, according to Publius, to declare acts contrary to the manifest tenor of the Constitution void. This is judicial review in a nutshell.

Publius addresses the matter of judicial review not on the grounds of American constitutionalism, but rather on the grounds of constitutionalism generally. Judicial review does not have to be written into the Constitution to be intended, indeed that is precisely the point: it derives its legitimacy from not being willed by the people but by the nature of a limited constitution in the first instance, by what he calls the “nature and reason of the thing.” Judicial review, in this view, is in a sense above the Constitution, as being grounded in what is necessary and reasonable.

The question, simply put, is could the legislature pass laws, and in so doing decide the constitutionality of those laws? Presumably the legislature would assume its own legislative output to be constitutional in every instance. But more than this, we are unwilling to allow one branch of government to pass judgment on its own work in a separated system. Reason dictates that it will fall to another branch of government to pass judgment on the legislative branch, and this duty falls to the Supreme Court. Laws that are passed by Congress must be made in accordance with the Constitution, and the Supreme Court is, according to Publius, uniquely situated to accomplish this.

He calls attention to the precarious nature of both the Court itself, and those who serve as Justices in the opening paragraphs of Federalist 78. The judiciary, he writes, “from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them.” The executive branch wields what he calls “the sword of the community,” and the legislative branch “not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.” The judicial branch, he asserts, has “neither force nor will,” but can only sit in judgment. Further still, the judicial branch cannot even enforce its own judgments. For that, it requires the assistance of the executive.

The judiciary is so feeble, he goes on to say, that life-tenure for federal judges is vital in securing their independence from the political branches.

After making the plain case for judicial review, Publius turns his attention to an obvious objection when he asserts that this does not mean that the judicial branch is supreme in the American system. Rather, he presents the courts as occupying a sort of necessary middle ground between the people and Congress. “It is far more rational to suppose,” he writes, “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” In the end, he holds that the power of the people is superior to the power of either the legislature or the courts, and this can be maintained only when judicial review is a feature.

Marbury v. Madison, McCulloch v. Maryland, and the Growth of Federal Authority

Marbury v. Madison

The Facts of the Case:

Begin with 60-Second Civics: “Episode 2042: We the People, Lesson 21, Part 4: Marbury v. Madison explained,” which briefly presents the facts of the case:


60-Second Civics: Episode 2042, We the People, Lesson 21, Part 4: Marbury v. Madison explained
Fig 7.3- John Marshall

This case grew out of one of the great early political struggles in the young republic. Shortly after the ratification of the Constitution, two rival political parties emerged with widely different views of the Constitution and governmental power. The Federalists supported a strong national government, including the power of judicial review. The Anti-Federalists (an intellectual movement), and later the Jeffersonian Republicans (a political party), remained distrustful of the national government and continued to favor the states and state courts. The struggle between these two groups came to a head with the election of 1800, in which the Jeffersonians defeated the Federalists, who had held power since the birth of the republic. Needless to say, the Federalists feared what the Jeffersonians would do once in office.

In order to cause difficulty for the Jeffersonians, President John Adams and his allies in Congress created a number of new judgeships and appointed Federalists to all of the new posts, in the hope that they would counter the Jeffersonians once they took office. With time running out before the inauguration of Thomas Jefferson though, not all of the commissions had been delivered. John Marshall, who had just been appointed Chief Justice of the Supreme Court by Adams, continued to work as Secretary of State, the position he had held in the Adams Administration. As Secretary of State, he was responsible for delivering the commissions before his term ended. He failed to deliver seventeen of them, though, before Adams left office. Those he left to his successor, James Madison, to deliver. Needless to say, the Jeffersonians were not happy with the scheme, and Jefferson instructed Madison not to deliver the remaining commissions.

William Marbury was one of the men whose commission went undelivered. He decided to sue to force Madison to give him his commission. Specifically, he pursued a writ of mandamus, which is simply a court order directing a government official, in this case Madison, to perform a certain act, in this case the granting of a commission. Marbury argued that Section 13 of the Judiciary Act of 1789 had authorized the Supreme Court to issue such writs. He saw this as a way of both getting his commission and allowing the Federalists to reassert their power over the Jeffersonians. The Judiciary Act of 1789 itself is of little consequence to us here. What mattered was that an act of Congress had granted a certain kind of authority to the Supreme Court to act. Marbury’s hope was that the Court would indeed act, and he would get his commission. This was not an unreasonable hope, given it was Chief Justice Marshall’s responsibility (and desire) to deliver the commission in the first place when he served as Secretary of State.

This case was politically explosive for the Court and the country over the still-uncontested power of judicial review. The Court here faced a major dilemma. On the one hand, if the Marshall Court ordered Marbury’s commission, it was likely that Jefferson would nonetheless refuse to deliver it. The Court would then be powerless, maybe permanently. On the other hand, if the Court refused to issue the writ, it would appear weak, which would confirm the Jeffersonian argument that the Court had no power to intrude upon the executive branch in the first instance.

Marshall’s opinion in this case deals with a number of issues. Only one, though, gives this case the significant status it has enjoyed ever since. In his opinion, Marshall shrewdly asserted the right of judicial review, and for the first time the Court overturned, in part, an act of Congress, while giving Jefferson no opportunity to retaliate. In other words, in an apparent dispute with the executive branch, Marshall took issue with an act of the legislative branch which had, in effect, given more power to the Court than was constitutionally permissible. This deft handling of the situation proved sufficient to defuse the political controversy surrounding the case. While the Jeffersonians did not agree with Marshall’s opinion, there was little for them to do, because the Court did not order the delivery of Marbury’s commission. Congress was similarly not offended, as the Court decreed that Congress could not expand its power. The opinion of the Court was unanimous.

Read Marshall’s opinion before moving on, keeping in mind the larger picture:

Fig 7.4- Inscription on wall of Supreme Court Building

Marbury’s remedy, according to Marshall, depended upon two things: the nature of the writ applied for and the power of the Supreme Court. He held that a writ of mandamus was clearly called for in this case, but it was an open question as to whether the Supreme Court had the authority to issue one.

The Constitution, wrote Marshall, vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress deems necessary. Given this observation, he asserts, it is clear that all cases which arise under federal law will fall under the jurisdiction of the Supreme Court. This is important given the nature of the case before the Court. It is clear that this case meets the requirement, whereas it would be questionable in many other cases.

Ultimately, Marshall appeals to the nature of the American regime. The American government, he held, is by nature limited. As a limited republic, the Constitution must be understood as the controlling authority. So the Constitution then must control legislation which is repugnant to the Constitution. There is no middle ground, as Marshall says. The Constitution is either a superior, paramount law, or it is the same as standard legislation.

If a law enacted by Congress is unconstitutional, what is the Court to do? Marshall asks if the Court should give effect to the repugnant law. This, he says, would be to overthrow in fact what was accomplished in theory. It would render the Constitution itself meaningless. But he goes further than this and begins defining the role of the judiciary in practice for the first time. If the Constitution is to be understood as the fundamental law of the land, the role of the Court, according to Marshall, is clear. The Court must stand with the Constitution. To do anything else would be to realize the greatest fear of the Framers.

In the end, Marshall presents his opinion very simply. Ultimately, he says that the Framers understood the Constitution to be the ultimate authority for the Courts, as well as the other branches of government. Given that, it becomes clear that the Court cannot enforce an act of the legislature that is repugnant to the Constitution. And the Act of Congress which enabled the Court to grant Marbury his commission was simply unconstitutional. It is, as they say, as simple as that.

What Marshall found in the Constitution was the authority for judicial review. He did not find any reason, though, to order the delivery of Marbury’s commission. This case provided the Court with a weapon to use against Congress in the future. Marbury, though, was attempting to overturn an act of the executive. Here, there could be no recourse for him. Marshall distinguished between political acts, which are not reviewable by the Court, and acts specifically required by law, which are reviewable. The refusal on the part of Madison to deliver the commissions fell into the latter category. He thus had to decide whether a writ of mandamus was warranted in this case.

The Judiciary Act of 1789, which gave birth to the judiciary, allows for writs of mandamus to be issued by the Supreme Court to “persons holding office under the authority of the United States.” The act thus specifically allowed exactly the relief sought by Marbury.

This provision of the Judiciary Act was, Marshall asserted, at odds with the Constitution, specifically with Article III, Section 2, which grants the Supreme Court original jurisdiction in limited instances.

The Supreme Court, then, had to pass on this issue according to Marshall. Because the Judiciary Act was at odds with the Constitution, the Constitution must be understood to be the primary source of law for the nation. This is why, on the one hand Marshall was able to deny the finding for Marbury, all the while asserting that he was in fact injured, while on the other hand asserting the Supreme Court’s role in interpreting the Constitution.

Marshall’s reasoning followed the logic of Federalist 78 almost completely, and it provided what has proven to be the final word on the authority of the Supreme Court to overturn acts of Congress that it deems repugnant to the Constitution.

Have a look at this short video for a summary of judicial review and Marbury:


And listen to 60-Second Civics: “Episode 2228: Amendments and judicial review, Part 12: Marbury v. Madison,” for a further summary:


60-Second Civics: Episode 2228, Amendments and judicial review, Part 12: Marbury v. Madison

McCulloch v. Maryland

The Facts of the Case:

Fig 7.5- First National Bank of the United States

In December of 1790, Secretary of the Treasury Alexander Hamilton proposed that Congress charter a national bank. The debate which ensued pitted Hamilton against Madison and Jefferson, not just over the allocation of federal power but general principles of constitutional interpretation as well. Hamilton contended that the national bank was necessary, and that it would strengthen the national government by aiding in tax collection, administration of public finances, and in securing loans to the government. He argued that Congress enjoyed broad constitutional authority to establish a national bank. The chief source of concern for the Framers was the possibility of an omnipotent Congress. In order to avoid this, they implemented a series of checks and balances, and spelled out the powers of Congress in Article I of the Constitution. In crafting his argument in favor of the national bank, Hamilton deviated from the notion of enumerated powers, and instead relied on a distinction between implied and express powers. He argued:

It is not denied, that there are implied as well as express powers, and that the former are as effectually delegated as the latter…It leaves therefore a criterion of what is constitutional, and of what is not so. This criterion is the end to which the measure relates as the mean. If the end be clearly comprehended within any of the specified powers, & if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution – it may be safely deemed to come within the compass of the national authority.

In the Senate, Hamilton’s proposal was endorsed unanimously. Interestingly, half of the Senators at the time had also served as members of the Constitutional Convention. Clearly some of these men would have been irritated if there was any doubt as to the constitutionality of a national bank. None of them, apparently, disagreed. In the House of Representatives, it was not quite the same story. There, Madison contended that the creation of a national bank was beyond the scope of Congress’s delegated powers. Despite his argument, the creation of the bank passed in the House as well. Washington signed the bill that had been passed by Congress, thus passing the creation of the national bank into law. The first Bank of the United States was incorporated and given a 20-year charter.

The dissolution of the bank in 1811, along with the War of 1812 led to difficult economic times for the United States. The second national bank was thus chartered in 1816, with a 20 year charter. Like the first national bank, the second was designed to regulate currency and to help resolve national economic issues. The panic of 1818, along with corruption within the various branches of the bank resulted in a number of states passing anti-bank legislation. One of these states was Maryland.

The legislation passed by Maryland became the center of the McCulloch dispute. The Maryland legislature imposed a tax on all banks operating in the state that were not chartered by the state. The measure was intended to discriminate against the national bank and its Maryland branch. The hope was that the national bank, at least insofar as it operated in the state of Maryland, could be taxed out of existence. The state brought suit against the bank and its cashier, Mr. McCulloch, in order to collect the tax. A lower court found for the state of Maryland, and this decision was affirmed, not surprisingly, by the Maryland Court of Appeals. As we have seen already though, the Supreme Court is to have original jurisdiction in any controversy in which a state is a party. It would seem that Maryland had overstepped its constitutional bounds from the start in this case, which renders questionable, at the very least, the state’s fidelity to the Constitution. This brings us to Marshall’s opinion, which can be found here:

Marshall sets up his decision by asking if Congress has the authority to incorporate a bank. This is immediately followed by a recapitulation of the argument that the United States government is one of enumerated powers. The incorporation of a bank is not within the sphere of enumerated powers. Still, there is a more fundamental problem as Marshall sees it. He writes, “…the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.” As he presents it, there will most likely always be a question regarding the nature of the powers that the federal government has been granted. In discussing these questions, he says, the conflicting powers of general and state governments must be brought into view, and a way to decide cases in which the superiority of these different types of laws is at issue must be found.

The Constitution is the supreme law of the land; moreover, the federal government is supreme within that sphere of activity in which it can rightfully operate. This case, though, is more about that rightful sphere of activity than anything else. The main question being asked here, as was the case with the charter of the first bank of the United States, is whether Congress overstepped its bounds through the act of incorporating a bank.

Marshall admits readily that there is no enumerated power for Congress to charter a bank. Just because there is no enumerated power to do this, though, does not mean that it can not be legitimately accomplished. At this point he compares the Constitution to the Articles of Confederation, and stresses that whereas the Articles left the Congress with virtually no authority to act other than what was explicitly mentioned in the document, the Constitution of 1787 was not so thoroughly restrictive. So he will come to rely on the notion of implied powers to bolster his argument here, and the necessary and proper clause, also referred to as the elastic clause because it can be stretched in so many different ways, seems to be the only reasonable argument in this instance.

The other side of the coin, is the 10th Amendment, which had been ratified in 1791 as part of the Bill of Rights. Under this Amendment, all powers not granted to the federal government revert back to the states or to the people. It would seem that one could make a very persuasive argument here which held that because the power to charter a bank was not enumerated, then the power to do so did not belong to the federal government at all.

Ultimately, Marshall argues that the Constitution could not mention how the government is to behave in every eventuality because it would simply be too long and complicated. Still, this is clearly a constitutional question. How best then to make the constitutional case in favor of the bank? Marshall’s answer to this question is to link the creation of a bank with the enumerated powers.

As Hamilton had done previously, Marshall differentiates between express and implied powers and asserts that the express powers of the Constitution clearly imply that there are others which are not enumerated. After all, the necessary and proper clause may be explained on these grounds. By extension, given all of the financial tasks that the government is expected to perform, it is only fitting or necessary that every means by which such a large undertaking can be made less burdensome must be seriously considered and allowed when appropriate.

Marshall understands the state of Maryland to be in error for fundamental reasons. The necessary and proper clause is placed in the Constitution alongside those clauses which serve to enhance the power of Congress rather than limit it. Of this there can be no doubt. Furthermore, he states, the terms of this clause purport to enlarge rather than limit the powers of Congress. Curiously, after all of this, Marshall returns to the notion of a limited government. He has managed to keep from granting the federal government unlimited authority to act, but it seems clear that the power of the federal government was greatly enhanced by this opinion. His reference to Marbury in his opinion here, if only implicitly, reinforces his opinion and solidifies the Court’s role in constitutional analysis and authority.

The bank, as far as the unanimous Marshall Court was concerned, was clearly a constitutional endeavor. It remained to be seen whether the state of Maryland could legitimately tax the bank as it had planned. This was the issue, after all, that brought this case to the Supreme Court in the first place. Here, Marshall’s analysis follows from his prior reasoning about the bank. The bank of the United States, argues Marshall, is a concern of all of the people of all of the states. To allow the people of Maryland to act to the detriment of the people of the other states would be improper. To allow the state of Maryland to tax the bank of the United States would be to return the states to the level of control they enjoyed under the Articles, which would be counterproductive.

Watch this short video on McCulloch v. Maryland:


In Marbury, the Court expanded its own power at the expense of the other two branches. It extended the power of the federal government generally in McCulloch while undermining the authority of the individual states. These individual cases made the Supreme Court a powerful political institution in the United States. Indeed, the Court after 1819 was a far cry from “least dangerous branch” that was presented in The Federalist. There were other cases, of course, which enhanced the power of the Court over time, but these two are the most important.

Fig 7.5- Interior of US Supreme Court Building

The Supreme Court of the United States in Operation

Given the brevity of Article III of the United States Constitution, it should come as no surprise that the federal judiciary as it now exists owes more to American political development than it does to constitutional design. The following video offers a very good primer on the court system in the United States:


And this one covers the structure of the court system in the United States:


With that overview in hand, we can turn to the Supreme Court more specifically.

The Jurisdiction of the Court

In determining jurisdiction, the Supreme Court defines its own rules, to a degree. Each successive Court, which are each comprised of a unique combination of Justices, sets its own agenda.

The Supreme Court’s jurisdiction springs from three sources: Article III of the Constitution, congressional legislation, and the Court’s interpretation of Article III and legislation along with its own rules for taking a case. The Court’s original jurisdiction is defined in Article III. The Court has original jurisdiction in cases involving ambassadors, public ministers, and cases in which a state is a party. This is a pretty short list, and today only a few cases arrive at the Court on original jurisdiction each term, many involving disputes over water rights between states. According to the Constitution. Congress ordains and establishes the appellate jurisdiction for the Court, and the vast majority of Supreme Court cases arrive on appeal from a lower court.

Listen to 60-Second Civics: “Episode 2007: We the People, Lesson 16, Part 8: Jurisdiction of the Supreme Court,” for a brief overview of the jurisdiction of the Supreme Court:


60-Second Civics: Episode 2007, We the People, Lesson 16, Part 8: Jurisdiction of the Supreme Court


The Court also has its own jurisdictional doctrines and policies for accepting a case. To get to court, an individual must have standing; that is, he must prove that he has suffered an injury or infringement of a legally protected right. Additionally, even when the Supreme Court has jurisdiction in a case, it may decline to rule because the case presents a political question. In these instances, the Court believes that a case should be solved by one of the political branches, either the legislature of executive respectively. The origins of the political question doctrine lie in John Marshall’s opinion in Marbury v. Madison. Marshall wrote, “The province of the Court, is, solely, to decide on the rights of individuals. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this Court.”

Choosing Cases

Certain rules govern which cases make it to the Court and by what avenues. Justices, though, also screen cases from a large pool. Clerks and staff handle many of the logistical requirements, such as determining if a case is of requisite length and composing briefs for consideration. In order for a case to make it to the Court, four of nine Justices must agree that that case warrants consideration. This informal policy, referred to as “the rule of four” was adopted by the Court in 1925.

This power to decide allows the Court not only to make its own agenda, but actually to direct the legal agenda for the entire country.

When the Court asserted its power of judicial review in Marbury, it also assumed a role in the policy making process. The Court has the power to choose cases from a very large pool, and that power allows the judiciary to exercise a role akin to that of the legislature.

Of course, this process is largely political, and therefore the ideologies of the nine Justices play a role in ultimately determining the policy direction for the country. This is why the nomination and confirmation of Justices is both important and controversial. According to the Constitution, the President may appoint Justices with the “advice and consent of the Senate.” Generally, a President will nominate an individual who shares his ideology, and that individual must be questioned and confirmed by the Senate Judiciary Committee. This step in the confirmation process raises much controversy, if only because it has become increasingly politicized as the Court itself has taken on a more political role. The Judiciary Committee compiles a report on the individual and then the entire Senate votes to confirm or reject the nominee.


Indeed, it is extremely important for the sitting President to have several Justices aligned with his own policy views and preferences. The Court possesses the ability either to insulate itself from political debate (by utilizing the political question doctrine) or to influence public policy. These functions are undoubtedly very important. Yet there are also important procedural concerns within the Court itself. These procedural elements involve hearing oral arguments, conferencing, and determining which Justice will write the majority or dissenting opinions. These may seem like minor if not irrelevant concerns, but in the grand scheme of things, they can determine the Court’s ability to influence the political climate.

Chief Justice Hughes once observed that “the impression that a judge has at the close of a full oral argument accords with the conviction which controls his final vote.” A few days after hearing oral arguments, Justices hold conference and cast what are usually their deciding votes. Following this conference, Justices draft opinions in order to justify their votes or elaborate upon their line of thinking. The majority opinion, or the opinion of the Court, represents the judgment of a majority of the Justices. Writing the majority opinion usually involves compromise and a degree of finesse, since that opinion serves as the Court’s collective judgment. The Chief Justice has the power to assign opinion writing.

Here is a good video treatment on how cases ultimately make it to the Supreme Court:


And finally, a treatment bringing all of the above together to explain how it is that Supreme Court Justices actually make their decisions in the cases that come before the Court:



Take the other side: Justice Marshall’s opinion in Marbury v. Madison famously asserted the Supreme Court’s right to exercise judicial review. In a 300-500 word essay argue why the Supreme Court should not have this right. (Hint: Look at the enumerated powers given to the Supreme Court in the Constitution).

Key Concepts and Topics
  • Judicial Authority
  • Judicial Review
  • “Least Dangerous Branch”
Curriculum Resources


Take the other side: Justice Marshall’s opinion in Marbury v. Madison famously asserted the Supreme Court’s right to exercise judicial review. In a 300-500 word essay argue why the Supreme Court should not have this right. (Hint: Look at the enumerated powers given to the Supreme Court in the Constitution).

Fig 7.1
Petteway, S. (2010). United States Supreme Court Justices. Retrieved from

Fig 7.2
Noclip. The Supreme Court Front Dusk. 2007. Wikimedia Commons. Web.

Fig 7.3
Inman, H. (1832). John Marshall. Library of Virginia. Richmond, VA. Retrieved from,_1832.jpg

Fig 7.4
Inscription on wall of Supreme Court Building (2008). Retrieved from

Fig 7.5
Boucher, Jack. (1975). The First National Bank of the United States, later Girard’s Bank — in Philadelphia, Pennsylvania. Library of Congress. Retrieved from

Fig 7.6
Interior of US Supreme Court Building. (2007). Retrieved from

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