Vol. 76, No. 2, February 2003

The Importance of an Independent Judiciary

by Pat Ballman

In addition to the 125th anniversary of the State Bar and the 150th anniversary of the supreme court, 2003 also marks the 200th anniversary of Marbury v. Madison, decided Feb. 24, 1803. Why is that so important? Here is a little legal history refresher.

John Adams, a Federalist, was defeated by Thomas Jefferson, a Republican, in the 1800 presidential elections. Before leaving office, Adams worked with his political supporters in Congress to keep control of the federal courts and as many other courts as possible. At the eleventh hour Adams appointed, and the Senate confirmed, his choices for all the federal circuit court judges provided for in the Judiciary Act of 1801. William Marbury was one of the justices of the peace appointed to the District of Columbia. But Marbury's appointment was among a few that were signed and sealed, but not delivered before Adams' term ended.

When Jefferson took office he did not recognize Adams' appointment of Marbury, because it was never delivered, and Jefferson ordered James Madison, his new secretary of state, to withhold delivery. Marbury petitioned the U.S. Supreme Court to issue a writ of mandamus, requiring Madison to show cause why he should not be compelled to deliver the appointments. The authority for the Supreme Court to issue the writ had been provided in Congress's Judiciary Act of 1789.

The case had huge political implications. If the Court issued the writ, President Jefferson likely would have ignored it, adding to the image that the Court was a lesser power than the executive and legislative branches of government. And if the writ was not issued, the Court would be seen as showing deference to the president, with the same result. Chief Justice John Marshall, who authored Marbury v. Madison , brilliantly avoided those traps.

The Court held that it did not have the power to issue a writ, because the Judiciary Act of 1789, which had provided for such writs, unconstitutionally granted the power in violation of the Constitution's limited grant of original jurisdiction to the Court in Article III, Section 2. As a result, the Court held that it lacked jurisdiction to provide Marbury the remedy he sought, and dismissed the case.

Why was this brilliant? Although Marbury v. Madison limited the Court's power in one narrow respect, it claimed for the Court the much broader power of judicial review. The Constitution, Marshall declared, was the product of the people's exercise of their original right to establish the principles for government, and established fundamental principles of supreme authority. The judiciary's duty is to say what the law is; thus courts are to decide which is the governing law if two laws conflict. And because the Constitution is superior to any ordinary legislative act, "the Constitution, and not such ordinary act, must govern the case to which they both apply."

The power of judicial review established by Marbury has enabled the Court to effect revolutionary change in society when constitutional rights are at odds with "ordinary acts" of state legislatures. Judicial review has ensured that the Supreme Court justices, once confirmed, have sufficient power to exert their independence from the political branches and to enforce constitutional limits on the powers of state and federal political branches.

Two hundred years ago judicial review was firmly established in Marbury v. Madison . But we must be vigilant to maintain judicial independence in both the state and federal courts. The State Bar has previously taken the position that we support efforts to help maintain the integrity and independence of Wisconsin's courts, where even the perception of bias destroys public trust and confidence in the justice system. Because without that independence, there is no meaningful judicial review, and our constitutional principles cannot be preserved.

Wisconsin Lawyer