The Great Decision: Jefferson, Adams, Marshall, and The Battle For The Supreme Court, By Cliff Sloan and David McKean
A basic civics summary of the federal government is that Congress passes laws, the president executes (carries out) laws, and the Supreme Court interprets the law.
It’s right there in the U.S. Constitution (if you want to read an overview). And, the “big dog” in the courts is the Supreme Court with its nine justices in their black robes. They settle important issues of the day, by a process known as “judicial review,” including such questions like same-sex marriage, abortion, and the death penalty. Judicial review is an important check on other branches of government, making sure that the Constitution is followed. “Stop in the name of the law!”
The Supreme Court, however, was originally seen as such a weak institution and being a justice such a crummy job that Chief Justice John Jay resigned to be the governor of New York, and rejected a chance to come back. At the end of his presidency, after he had already failed to be re-elected, President Adams chose his Secretary of State, John Marshall, instead.
Chief Justice Marshall was an important part of making the Supreme Court the powerful institution it is today. Marbury v. Madison in particular was a sign that the Supreme Court had “arrived.” The case arose from a major national political dispute over the power and membership of the federal courts. A controversy that split the two major parties of the day. Marshall and the Supreme Court itself had to carefully negotiate the very tricky situation.
This book provides the details of the conflict, explains the opinion itself, and the meaning of the ruling for the current day Supreme Court. Marbury did not just announce the principle of judicial review, and the Supreme Court’s special role in interpreting the law, but also its limits. A related case decided the same time, for instance, upheld the right of the Congress to pass a system of “circuit riding” that the justices themselves disliked. But, it was upheld as legal.
This book fits into a wider collection that uses a specific Supreme Court case to not only discuss the actual details of the dispute, but wider historical and legal events of the day that still in some ways affects us today. And, this is the daddy of all the “landmark cases.”
This is not just the story of a single case. It is an account of a case of special importance in our history, an account that also provides the cast of characters and events that surrounded it.
Should I Read The Great Decision?
This book provides a straightforward account of the road to Marbury v. Madison geared for the average reader. This is done in a careful way, providing insights into the motivations of the people involved, and the complexities of the situation.
And, it is done in a down-to-earth way, often in the style of a novel with stylistic touches attractive to the reader. (“An air of giddiness swept the city.”) The supportive blurbs by historians show that the book can be enjoyed both by the layperson and expert.
It is not an in-depth analysis of the material (it is around two hundred pages). It does not “reinvent the wheel.” Those who want to read more in-depth coverage can read other books such as Jean Edward Smith’s biography of John Marshall and Arguing Marbury v. Madison (edited by Mark Tushnet), which provides various perspectives on the decision.
And, those who wish to find a critical account of the power of judicial review in our system will not really find it here. The book ends honoring the role of judicial review, including how Marbury is a “beacon for judges, lawyers, and law reformers around the world.” This will turn off some readers. But, the authors do provide in summary form criticisms of the decision.
Those who like this book also might enjoy What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States by James F. Simon and Marbury v. Madison: The Origins and Legacy of Judicial Review by William E. Nelson.
Marbury v. Madison has pride of place in the National Archives in the “Charters of Freedom” hall. It is a “national treasure” that stands for the rule of law. More so, the case took place during the nation’s first peaceful transfer of power. It is about the nation’s identity.
John Jay, the first Chief Justice of the United States, rejected President Adams’ offer to re-nominate him to fill a vacancy in January 1801. John Marshall was chosen instead.
[Photos of “the combatants” and justices — a six-man bench then — during Marbury.]
Chapter One: “This Gigantic Abortion”
The chapter title is one critical name given to the then new national capital, a bit of a rundown backwater at the time. The Supreme Court also seemed unimpressive, with little real power.
Chapter Two: John Adams Defeated
President Adams struggled during his presidency with his Federalist Party divided. John Marshall was appointed to be Secretary of State in early 1800.
Jefferson beat Adams in the election of 1800. Two Federalists supporting Adams’ re-election were William Marbury (“wildly ambitious striver”) and Justice Samuel Chase.
Chapter Three: The Rise of The Cousins
After learning about his defeat, President Adams received the resignation letter of Chief Justice Oliver Ellsworth. After John Jay turned him down, Adams chose Marshall for the job. Marshall agreed to continue to serve as Secretary of State until the end of Adams’ term.
[Marshall was unanimously confirmed, even though the Republicans in Congress were otherwise upset at other ends of term Federalist judicial nominees. This fact is not emphasized in the book, but shows how Marshall was seen as a generally accomplished and moderate figure.]
John Marshall was a cousin of the incoming president (once the Jefferson/Burr tie-breaker was handled). But, Marshall and Jefferson were very different people, including being members of opposite political parties. Marshall was much more of a nationalist and laid back than Jefferson.
Chapter Four: Midnight Judges
Before leaving power, the Federalists passed a major reform of the federal judiciary, the Judiciary Act of 1801. The law added many more legal and judicial positions for Adams to fill, the process of doing so carried out until his last day in office (that is, “to midnight”).
The Republicans saw this as an illegitimate power grab, especially Federalists confirming numerous federal judges with life terms at the last minute. Many of the picks were loyal Federalists, including William Marbury, chosen as justice of the peace.
There was so much to do at the last minute, Marbury’s commission was not delivered in time.
Chapter Five: President Jefferson
Jefferson became president, sworn in by Chief Justice Marshall. You can read a summary about Jefferson’s presidency in this article. Republicans were also now in control of Congress. James Madison became Secretary of State. A new day in D.C.
Chapter Six: The Battle Lines Are Drawn
President Jefferson found some undelivered commissions for the federal justices of peace confirmed in the last days of the Adams Administration. He ordered them not to be delivered. Jefferson was particularly upset at the “indecent conduct” of Adams, not allowing the incoming administration the freedom to choose who to nominate.
[The book was written before 2016, so the nominations of Merrick Garland and Amy Coney Barrett, raising somewhat comparable issues, are not covered.]
Jefferson and the Republicans also feared the last-minute Federalist judges would push the law in a bad direction. Republicans planned to pass new legislation to help regain control of the judiciary. Meanwhile, the Marshall Court began, opinions beginning to be handed down in one voice [instead of each justice handing down an opinion] with one “opinion of the Court.”
Chapter Seven: Marbury Files Suit
December 1801 brought a new sitting of the Supreme Court and Congress. Jefferson gave his first State of the Union. He suggested a change might be justified to the Judiciary Act of 1801. He left out from his speech his opinion that each branch of government has an unreviewable power to judge the constitutionality of their actions.
The Supreme Court also accepted a new case to be argued early the next year. Four men were confirmed as justices of the peace, but their commissions were never delivered. One was William Marbury. They asked for the Supreme Court to hand down a legal order to force delivery. Many Republicans saw this as an outrageous invasion of executive discretion.
Chapter Eight: The Firestorm
The Republican Congress repealed the Judiciary Act of 1801. The sixteen additional judgeships were eliminated. A new Judiciary Act of 1802 was also passed. Justices now again had to “circuit ride” (serve as lower court judges) and the Supreme Court had a new schedule.
The Supreme Court would not reconvene until 1803, fourteen months later.
Marshall questioned the constitutionality of the laws, but the justices as a whole consented — they started to ride circuit once more. A lawsuit, Stuart v. Laird, arose challenging the legitimacy of the new court system established. It failed on the trial level.
Chapter Nine: Trial in the Supreme Court
Both lawsuits reached the Supreme Court as Congress divided along party lines over the issues as they arose separately in legislative actions. The Jefferson Administration did not send someone to defend itself in Marbury, so the proceedings were a one-sided affair.
Chapter Ten: Deliberation
(This chapter continues the book’s usage of color commentary, providing the reader a window into the happenings of the political scene of the day. A sort of “you are there” snapshot.)
Charles Lee, Attorney General under Washington and Adams, again argued for the Federalist leaning side in Stuart v. Laird. Congressional power over the judiciary was at stake. The case received little attention; Marbury was getting all the attention. (Was the other case jealous?)
Chapter Eleven: Decision
Marshall and the Supreme Court as a whole carefully balanced various things when handing down the Marbury ruling. The looser rules of judicial exclusion then in place allowed John Marshall to write the opinion, even though he was directly involved in the events.
The Court accepted that Marbury by right had a right to his commission. But, the specific means he used was unconstitutional. This upheld the rule of law, including the power of the Supreme Court to interpret it (judicial review), while avoiding a direct confrontation with Jefferson. Public reaction was mixed, but Jefferson particularly found the ruling offensive, thinking his presidential discretion was wrongly being challenged.
The other case was handled shortly after via a short opinion. Congress did have the power to repeal the Judiciary Act of 1801 and historical practice showed circuit riding was acceptable. Since he took part in the lower court ruling, Marshall did not take part in this case.
Chapter Twelve: The Meaning of Marbury
The power of judicial review eventually led to the Supreme Court to have great power to settle leading constitutional disputes such as segregation. It influenced constitutional development in other countries as well. In a footnote, the chapter cites some criticisms of Marbury, but the chapter suggests the case as a whole was a success story.
The chapter provides a summary of what happened to various people involved in the case after the rulings were handed down. Marbury was the last time the Marshall Court found a federal law unconstitutional, but it struck down many state laws on constitutional grounds.
And, yes, Charles Lee was the uncle of Robert E. Lee, the future Confederate general.
Points to Ponder
Justice Kagan said this during her confirmation hearing:
I think it’s law all the way down. It’s — when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is — and this is true of constitutional law, it’s true of statutory law — the question is what the law requires.
After reading this book, do you think this is correct? Is it too simplistic?
The book, in a footnote, provides five lines of criticism raised against Marbury v. Madison, but the authors retain deep respect for it. Do you think the criticisms have merit?
The Republicans’ opposition to the “Midnight Judges” and repeal of the Judiciary Act of 1801 might sound familiar. Today, control of the federal courts is also seen by some as a partisan political issue. Many were upset when a Supreme Court justice was confirmed shortly before the 2020 presidential elections. Others are concerned about the politicization of the judiciary. How does the history discuss in the book add insights into this controversy?
About the Authors
 Cliff Sloan at the time of the publication of this book (2009) was a partner in a major law firm. He previously was a Supreme Court clerk to Justice John Paul Stevens, argued in front of the Supreme Court multiple times, and wrote about the institution for many publications.
Sloan also served in various congressional and presidential roles (including an attempt during the Obama Administration to close down the prison camp at Guantánamo Bay). He later became a law professor. He is working on a book about the Supreme Court during World War II.
 David McKean at the time of publication was a top-level Senate aide and previously was chief of staff of Senator John Kerry. McKean was later ambassador to Luxembourg.
He wrote several books on political history in addition to this one:
- Suspected of Independence
- Friends in High Places (with Douglas Frantz)
- Tommy the Cork: Washington’s Ultimate Insider From Roosevelt to Reagan
- Watching the Darkness Fall
- Suspected of Independence: The Life of Thomas McKean, America’s First Power Broker
- Partners of First Resort: America, Europe, and the Future of the West (with Bart M. Szewczyk)
- Watching Darkness Fall: FDR, His Ambassadors, and the Rise of Adolf Hitler
How Reliable is the Book, The Battle for the Supreme Court?
The book is written by two authors familiar with the material as a result of experience and individual scholarship. The authors have a legal and policy background.
Cliff Sloan is particularly informed about the Supreme Court while David McKean has written multiple books about U.S. history, including the specific era involved.
The book is well-sourced in endnotes. The endnotes are provided in a summary form that is not linked by specific note numbers to the text. The book also has an index.
The book probably could have benefited from a chapter that examined the criticisms of Marbury in more detail than doing so in an extended footnote. The “meaning” chapter might be a bit too one-sided celebratory of judicial review. But, overall I think the book is reliable.
By Joe Cocurullo