Marbury Now
Consider a showdown between an institutionalist Chief Justice of the United States and an ambitious and opportunistic President of the United States — a showdown in which the Chief Justice wishes to both lay bare the president’s violations of law and norms, and to bolster the Court’s power and authority. And yet the president is a canny one, a powerful one, an intransigent one, who will not meekly accept what even the Chief Justice may dictate.
No, I am not talking about President Donald Trump or the Roberts Court — though I will return to them — but about the Founding era. This showdown took place between Chief Justice John Marshall, the last hope of the defeated Federalist Party, and President Thomas Jefferson, the leader of a new political coalition that had defeated them. Their showdown, more than two centuries ago, produced the Supreme Court’s decision in Marbury v. Madison.
Marbury is part of the canon of constitutional law, known for establishing the principle of judicial review. Under canonical Marbury, federal courts are the guardians of the Constitution: they sit implacably to decide whether the actions of Congress or the president are constitutional. This is what Marbury stands for. This is constitutional bedrock.
But like so many canonical texts, the Marbury of legend is just a tale. Marbury’s real lessons are more complicated, less triumphant, and yet even more urgently relevant. Marbury did render an important defense of judicial review under the Constitution. But Marbury also contains the seeds of executive power, and a logic that leads to the Supreme Court’s recent decision in Trump v. CASA, in which the Court ruled that federal courts could not issue “universal” injunctions, and thus that executive officials could disregard judicial interpretations at least some of the time. Marbury also demonstrates — through sleight of hand and indirection, not plain statement — the ways in which practical judicial power may depend on political calculation.

First, the legend.
The central setup of Marbury was this. In 1801, John Adams lost the presidency to Thomas Jefferson, marking the first partisan transition in American history. As Adams’ Federalist Party prepared to hand over power to Jefferson’s Democratic-Republicans, they also rushed through a lot of business during the last few months before the inauguration — what we now call the “lame duck” period. This business included legislation expanding and restructuring the federal courts, and also creating offices for some relatively minor jurists — such as the “justices of the peace” in the District of Columbia.
One of these would-be jurists was a man named William Marbury. He was a local businessman and political climber who had become active in Federalist Party politics, trying to help Adams win reelection. Adams rewarded him with an appointment as a D.C. justice of the peace. Adams sent Marbury’s name to the Senate as one of forty-some last-minute appointments, and the appointment was confirmed on the last full day of the Adams presidency. But something went awry.
The last step in appointment to constitutional office is a “commission” — a formal document, like a property deed, that authorizes the holder to exercise government power and proves that he is the one who got the job. Even today, many judges are known to hang their commissions framed on their office walls, as both mementos and proofs of authority. In the eighteenth century, with slower communications and no instant background checks, these commissions were even more important. In the haste of the last hours of the Adams administration, however, Marbury’s commission was never delivered to him. The outgoing secretary of state botched the delivery, and when Jefferson swept into the White House he trashed the undelivered commissions and attempted to rescind all of the last-minute appointments.
This produced the famous precedent of Marbury v. Madison: Marbury sued for his commission, and the Supreme Court ruled that Marbury had a legal right to that commission in an opinion authored by Chief Justice John Marshall. Indeed, said Marshall, our government could not be “termed a government of laws . . . if the laws furnish no remedy for the violation of a vested legal right.” Even more importantly, the Supreme Court also said that it had the power of constitutional interpretation and judicial review. As Marshall elegantly explained, what we now recognize as judicial review is a consequence of two elementary rules of constitutional law. One is that the written constitution is superior to ordinary laws. Congress and other government officials hold office only under the terms of the Constitution. The Constitution itself creates the institutions of American government. Moreover, it makes clear that the officials who govern us ultimately do so in our name, on behalf of “We the People.” They, in constitutional terms, are the agents and we (collectively) are the boss.
Marshall explained that this ideology — a form of democratic originalism, if you will — was what led people to create written constitutions. They constitute “the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.” The Constitution trumps ordinary law. That is the first rule.
The second rule is that judges are allowed — in fact, are obligated — to open their eyes and read the Constitution. Indeed, wrote Marshall, “it is emphatically the province and duty of the judicial department to say what the law is.” What is the alternative, Marshall asked? Must judges “close their eyes on the constitution, and see only the law”? No, he answered. “This is too extravagant to be maintained.”
To Marshall this second rule was obvious for practical reasons. Without judicial review, the legislature would have “a practical and real omnipotence” because it could ignore whatever the Constitution required. It was also required by individual honor. The Constitution requires judges to take an oath to support the Constitution — to govern their own official conduct by our founding document. How could they do this if they could not read it?
From these two rules, Chief Justice Marshall distilled one of the most recognizable (and widely exported) features of American constitutional law — the principle that courts will be guardians of the constitutional order. As the Supreme Court later glossed the case, during the dismantling of Jim Crow: Marbury “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”
Now the real Marbury.
This story is not false. Everything I have just written is true. But it omits two startling things.
First, the idea of judicial review was not at all new when Marbury was decided. Alexander Hamilton had explicitly defended it in The Federalist before the Constitution was ratified, referring to “the rights of the courts to pronounce legislative acts void, because contrary to the Constitution”; legal precedents for it had already existed in the colonies; and the Supreme Court itself had been engaged in judicial review for over a decade between the creation of the Constitution and the decision in Marbury. And second, William Marbury never actually got his commission, and the Supreme Court did not order anybody to give it to him. Despite the Supreme Court’s stern language about Marbury’s rights, and despite its conclusion that it had the duty “to say what the law is,” the Court nonetheless found a convoluted path to rule against Marbury, and in favor of President Jefferson, while simultaneously emphasizing the Court’s power and independence.
This was, frankly, a difficult trick. To pull it off required some clever shenanigans from Chief Justice Marshall that at times veer into legal technicality. But these shenanigans were important to the making of Marbury, and important to thinking about the Supreme Court today, so please bear with me briefly as I unpack them.
Like a good magic trick, the Chief Justice’s opinion in Marbury involves several moving parts. Indeed, the choreography was key to what Marshall accomplished. Marshall began by considering the abstract question of whether Marbury should have gotten his commission. Marshall answered “yes,” partly for a series of technical reasons about the details of commissions, deeds, and so on. Only then did Marshall turn to the more dispositive legal question of what the Court could do about it. Here things got more complicated. Marshall concluded that a federal law, a part of the Judiciary Act of 1789, gave the Supreme Court the ability to hear Marbury’s case. (Because the law said that “the supreme court . . . shall have power to issue . . . writs of mandamus” — a “writ of mandamus” being a court order to an official to do his duty). But Marshall then concluded that the federal Constitution did not allow the Supreme Court to hear the case. (Because the case had been brought in what is called the Supreme Court “original jurisdiction,” meaning it had not been previously brought to another court.)
It was these technical interpretations, reached at this stage of the case, that finally set up the legal question for which Marbury v. Madison became famous — the question of judicial review. Marbury did not use the phrase “judicial review,” which was not coined until the twentieth century. Marshall instead framed the issue as one of “repugnance” to the Constitution and of judicial “duty” to apply the law. In Marbury’s terms, the question was whether “an act of the Legislature repugnant to the Constitution” could nonetheless, “notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?” And the Court’s answer to this was an emphatic no. Here is one of Marshall’s crucial statements of what we now call judicial review:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Thus, the Court summarized in the last sentence of its ruling, “a law repugnant to the Constitution is void, and . . . courts, as well as other departments, are bound by that instrument.”
Yet the upshot of all of Marbury’s discussion and exercise of judicial review was that William Marbury lost. He lost even though he had a right to his commission. He lost even though Congress had authorized the Supreme Court to hear the case. He lost because the Supreme Court exercised judicial review to refuse to hear the case. The main function of judicial review in Marbury was only to vindicate the Supreme Court’s own authority.
Even this discussion does not fully capture the many maneuvers that produced Marbury. Briefly, there were four others:
John Marshall’s conclusion that there was a conflict between the Judiciary Act of 1789 and the Constitution relied on a forced interpretation. Most scholars agree that the Judiciary Act did not actually authorize the case. The Court’s conclusion that it did just gave it the excuse to hold the Act unconstitutional, arriving at the same place.
Given where the Court ended, the opinion was written in the wrong order. Once we know that the Court does not have the power to hear Marbury’s case, there is no reason for it to opine at length about Marbury’s right to his commission. Indeed, doing so is what is called “obiter dictum” — the expression of irrelevant opinion that is not necessary for the decision.
Moreover, it is not clear the opinion should have been written by Chief Justice Marshall at all. Another factual complication is that the Secretary of State who was in charge of issuing the last-minute commissions in the Adams administration was none other than John Marshall himself, who had delegated some of the deliveries to his younger brother James. (Even then, the Justices came to the Court from lively political backgrounds.) In adjudicating a case where he himself was a key player, Marshall was certainly pushing the bounds of propriety.
Finally, it is not clear an opinion about the principles of judicial review needed to be written at all. What Marshall wrote there about judicial review was all true, well and convincingly explained, and deserved to become canonical. But also, as noted above, the idea of judicial review was not novel. The Court had entertained serious constitutional challenges years earlier, in cases involving federal taxes, the adjudication of veterans’ benefits, and other things. In these cases, judicial review was taken for granted.
In sum, Marbury v. Madison used a forced and questionable legal vehicle to navigate a series of technical obstacles so as to vindicate what should have been obvious principles of constitutional law, even though they were not really relevant to anybody but the Court.

Why? Why did Chief Justice Marshall, an able and wily man, spend so much energy pulling a rabbit out of a hat, only to stuff it back in again?
Scholars have concluded that Marshall was in fact executing a somewhat savvy political ploy. It is true that judicial review had been an assumption of constitutional law at the creation of the Constitution. The Constitution itself referred to “judicial power” in “all cases, in law and equity, arising under this Constitution.” Alexander Hamilton, as mentioned above, had defended the Constitution’s grant of judicial independence because of “the rights of the courts to pronounce legislative acts void, because contrary to the Constitution” which he argued would make the courts “bulwarks of a limited Constitution against legislative encroachments.”
But it was not yet clear what judicial review would mean in practice. For in the same article of The Federalist Hamilton also downplayed the power of the judiciary, calling it “the least dangerous” branch because it had “no influence over either the sword or the purse,” and had “neither FORCE nor WILL, but merely judgment.” Would the Court really be willing to rule against the more dangerous branches, in a case of any consequence? And if it did it, would other branches of the government listen?
These questions were very much alive at the time of Marbury. And they put the Court in something of a bind. If it did not act to vindicate Marbury’s rights, that might be a signal that the Court had no guts, no real power in the cases that mattered. The case was one of several test cases about the relationship between the old Adams administration and the new Jefferson administration, and the judiciary was close to the last hope the old Federalists had of retaining any check against the Jeffersonians. Yet if the Court did order Thomas Jefferson, or his Secretary of State James Madison (hence the v. Madison) to deliver Marbury’s commission, could it make them do it? “You and what army?” is a playground retort, but it is unfortunately applicable to the courts of law.
Marshall’s maneuvers allowed him to simultaneously do three things that might have seemed impossible together: to publicly proclaim that a loyal Federalist, Marbury, had been wronged by President Jefferson; to reaffirm and to defend the power of the federal courts to review the constitutionality of the acts of the other branches of government; and yet to do both of these things in a way that President Jefferson could not immediately defy. Avoiding immediate defiance was key for the first two proclamations to have power.
Marshall’s decision to make sure that he ruled in favor of President Jefferson thus gave him freedom to make aggressive legal declarations against Jefferson’s interest. Since they did not require anything of Jefferson in the immediate case, there was nothing for Jefferson to defy, and no way for him to demonstrate his power over the Court. Instead, Marshall effectively banked possible power for the future, establishing the Court’s authority, even as Marbury himself twisted in the wind.
This may not be turning square corners, but this is judicial institutionalism. Marshall was less focused on doing justice, or being honest, in the particular case and more focused on what would be good for the judiciary in the long run. He took a long view, and a view that was aware of the moment in history. He faced the challenge of getting people to respect a new kind of authority — a Supreme Court for a new nation that would grow into an empire. To do this required not just legal skill but political skill. John Marshall, we might say, had to be shrewd — manipulative, even — so that his successors would have the freedom to be principled.

But what the courts can do, others can do too.
While Marbury put an exclamation mark on the power of judicial review, it also laid the groundwork for aggressive executive interpretation of the Constitution — a power that the Trump administration has not been shy about invoking, and that came to a boil in the recent CASA decision.
Recall that Marshall’s chief arguments were that the Constitution trumps ordinary statutes, and that judges are allowed to read it. Judges are allowed to read it because the Constitution requires them to decide cases according to law, and also requires them to take an oath to support the Constitution. These arguments are why judges can decide for themselves what the Constitution means, even if Congress and the president disagree. Yet an ingenious and ambitious president might ask, what about me? May the president also propound his own interpretations of the Constitution, even if Congress and the courts disagree? Marbury’s own logic actually suggests that the answer is yes. Just like judges, the President is required to conduct his actions according to law — indeed, the Constitution says that “he shall take care that the laws be faithfully executed.” And just like judges, the President takes an oath to support the Constitution. Indeed, the wording of his oath is (uniquely) spelled out in detail in the Constitution itself. If judges can and must open their eyes to the Constitution, then so must the president.
Judges are also lawyers, learned in the law and in the Constitution’s precedents. (Though nothing in the Constitution says that judges must be lawyers, and some presidents, such as Barack Obama and Richard Nixon, have been lawyers too.) But the Constitution does not establish a monopoly of lawyers. Its very first words proclaim that it is the act of “We the People,” not of “Our Learned Counsel.” And as John Marshall wrote in a different famous case, the Constitution is not written in the form of a “legal code” precisely because if it were, “it would probably never be understood by the public.” Marbury boldly established that judges could read the Constitution, even when popular politicians did not want them to do so. But it did not establish that only judges could read the Constitution.
A century and a half after Marbury, the judges-only position did gain steam. Some politicians found interpreting the Constitution tiresome and needlessly controversial. (Constitutional interpretation is, and should be, intellectually taxing.) It was easier to defer constitutional questions to the courts, and sometimes easier to sell controversial interpretations of the public if they seemed to come from outside of politics. Some began to regloss Marbury, as if it had said that it was “exclusively” the province of the judiciary to say what the law was.
Indeed, the Supreme Court itself did this in the Little Rock case in 1958. In response to a campaign of interposition and massive resistance to the desegregation ordered by Brown v. Board of Education, the Court wrote an opinion condemning state officials for disagreeing with the Court’s interpretations. (Even though state officials, too, take an oath to support the Constitution, just as judges do.) Purporting to describe “settled doctrine,” the Little Rock Court parsed Marbury for “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”
“It follows,” wrote the Court, “that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’” But it does not follow. Article VI makes the Constitution binding and supreme law — but it does not follow that every interpretation of the Constitution, even the Court’s interpretations, are the same thing as the Constitution itself.
As Justice Frankfurter once put it, more accurately, “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.” This aphorism emphasizes that an interpretation is only as enduring as it is accurate. Moreover, the difference between “the Constitution itself” and the courts’ interpretations also shows how phrases like “settled doctrine” can mislead. What the Supreme Court settles it can also decide to unsettle, as sometimes it has and must. The term “settled doctrine” arises precisely when the doctrine is under attack — like a lazy rhetorician who starts his most controversial claim with “obviously” to try to mask its nonobviousness. Similarly, the theater of judicial confirmation hearings called for nominees to describe cases like Roe v. Wade as “settled” precedent because Roe was under threat. To call Roe settled law was technically true, but the real question was whether the Justices would choose to unsettle and overrule the precedent, as they did in Dobbs. The invocation of “settled precedent” was a ritual that could misleadingly reassure the laity even though all lawyers understood how little it promised.
To return to Little Rock: not only did it extrapolate too wildly from the Constitution, it also overread Marbury. It is not really true that Marbury contained a principle of judicial supremacy, nor that such a principle was “ever since … respected.” This is the dirty secret in the history of judicial review. President Jefferson, President Jackson, President Lincoln, and many others questioned and even refused to subordinate their own views to Supreme Court interpretations. Many Presidents have exercised independent judgment rather than closing their eyes to the Constitution and seeing only the judicial decisions. The interpretation of the Constitution by judges is not the same thing as the Constitution itself. Judicial review does not make puppets or robots out of the executive and legislative branches.
Moreover, after Little Rock, even as the Court insisted on its judicial supremacy against the states, it did not insist as forcefully against the president and Congress. Indeed, as documented by Gerald Rosenberg in The Hollow Hope: Can Courts Bring About Social Change?, the Court’s desegregation program only became real because it was enforced by legislation and executive action.
Now, Donald Trump is no Abraham Lincoln. Neither is Joe Biden. But both presidencies put further pressure on these assertions of judicial supremacy. In case after case, partisan enemies of the administrations challenged the administration’s initiatives in front of sympathetic trial courts, which awarded “universal injunctions” — injunctions that controlled executive conduct everywhere, even if it had nothing to do with those who had sued. The premise of the universal injunction is judicial supremacy — and not only of the Supreme Court either. Once “the federal judiciary” has concluded that the administration is wrong about the law, the universal injunction holds, the administration has to agree. It is not entitled to have a contrary interpretation of the Constitution, even in other cases involving other people.
In Trump v. CASA, decided at the end of the Supreme Court term last June, the Supreme Court rejected the universal injunction. In rejecting the universal injunction, it vindicated the idea that the president may make his own determinations about the Constitution, at least until specific and nonuniversal relief is ordered by the courts. Indeed, under CASA injunctions by lower courts are not even comprehensively binding within an individual district or circuit; relief is about the parties, not the court. A consequence of limiting judicial relief to the parties before the court is to free up the executive branch to take its own view of the law as to every party not before the court. And the current administration has not been shy about asserting the president’s own constitutional determinations or preferences — of broad executive power, limited protection for dissent, against reprisal, and so on. These determinations have now been coming furiously across the dockets of the federal courts.

This leads us back to Marbury now. Obviously, Marbury reminds us that the Supreme Court can and should be able to review the constitutionality of laws and executive actions today. The Justices are not supposed to take President Trump’s actions on faith. If his actions are unlawful or unconstitutional — and many of them are — Marbury seems to call the courts to arms.
And yet the Supreme Court has not been ruling against the Trump administration, for the most part. In two dozen cases, involving the dismantling of federal agencies, the impounding of federal funds, the cancellation of grants, the detention and summary deportation of immigrants, the revocation of birthright citizenship, and more, the administration has prevailed in case after case. These cases have mostly been on the Supreme Court’s shadow docket (though this term stings so much that the politically correct term is now “emergency docket,” or perhaps “interim docket”). In these cases, the Court has been exercising its discretion to allow the administration to come forward, outside the normal appeals process, to pause many of the rulings against it. It might seem to many observers as if the Supreme Court and the Trump administration are close institutional partners, working hand in glove. Do these decisions reflect a Court in complete agreement with the Trump administration agenda, or a forfeiture of the lessons of Marbury? Perhaps they reflect neither.
Remember that William Marbury never did receive his commission, and John Marshall worked very hard to make sure that he never told President Jefferson to issue it. Just as Marshall was not at all sure where the Court stood against President Jefferson, what if the current Justices are not at all sure where they stand against President Trump? What would Chief Justice Marshall do?
We do not yet know whether the Supreme Court is ready to confront the Trump administration, but what it has done so far is surprisingly consistent with Marshall’s Marbury strategy. Its shadow docket rulings have almost entirely been procedural victories for the Trump administration. The Court has said almost nothing about whether the actual decisions made by the administration are lawful. In some cases, it has made this proceduralism explicit. In others, in an inversion of Marbury, it has not been “saying what the law is” at all. (This is a lamentable fact of life on the shadow docket.) And yet most intriguingly, some of the decisions contain important material that might later support ruling against the executive, wrapped tightly into decisions that the executive cannot so easily defy.
Consider three examples, all drawn from the authoritarian abuses of the government’s immigration power.
First, there was the Alien Enemies Act. A statute enacted back in the Adams administration gives the President the power to expel immigrants who are part of an invasion or a “predatory incursion” by a foreign government. In American history it was used only in major wars (1812, World War I, World War II) until the Trump administration decided to use it to deport immigrants without judicial review or due process. Since the United States is not in fact being invaded by South American countries, this use of the law is illegal. But if the deportations could be done swiftly enough, or the courts could be convinced to look away (by the incantation of “national security”), perhaps the administration could get away with it.
The courts did not look away, not all of them. One particularly dramatic showdown occurred in front of Chief Judge James Boasberg of the District of Columbia, who acted quickly to stop the summary deportations. The Trump administration went to the Supreme Court, arguing that the case should be taken away from Boasberg for procedural reasons — the reasons being that the aliens should be made to file individual cases through the ancient writ of habeas corpus in the districts of Texas, where they were being detained before removal.
The Supreme Court cannot have missed the broader context of the case. While these arguments were drying on the page, supporters of the administration were calling for Judge Boasberg’s impeachment as a traitor. Administration officials had already come close to defying Judge Boasberg’s authority, shipping detainees out of the country as he prepared to order them not to do so. It was not entirely clear whether the administration would obey a Supreme Court decision affirming Judge Boasberg.
The Supreme Court reversed Judge Boasberg in Marbury-esque fashion. The Court agreed with the administration on the procedural issue. Judge Boasberg should not have heard the case, and future cases would be filed more locally, in front of federal judges scattered across the vast state of Texas. But this Trump administration victory was bundled with a rebuke. The same opinion also stressed that those subject to the order were entitled to prompt and meaningful judicial review, including the “interpretation and constitutionality” of the law. This was a significant holding because the point of the Alien Enemies Act gambit was to shortcut extensive judicial review. Despite ruling for the administration, the Court sideswiped the administration and enabled further challenges in federal courts throughout the country (which continue, somewhat successfully, to this day). Moreover, as in Marbury, the administration could not directly confront the ruling because they were disarmed by their own victory on the procedural issues.
Then there is the case of Kilmar Abrego Garcia. As part of their roundup, the Trump administration accidentally deported a Maryland man whose deportation had been paused by an immigration judge several years earlier. Shocking to say, these kinds of mistakes have happened before, and the routine practice has been for the government to facilitate the alien’s return to the United States. But the Trump administration refused, choosing instead to turn its mistaken treatment of Abrego Garcia into a national spectacle.
As the administration tried to resist lower court orders to make it right, it once again went to the Supreme Court for vindication. Once again it got a Marbury-esque ruling in return. The Supreme Court agreed with the Trump administration that the lower courts might have “exceed[ed]” their “authority” by demanding that the government “effectuate” Abrego Garcia’s return to the United States, and this portion of the decision led members of the White House to claim that their intransigence had been vindicated by the Court. But in the very same decision the Court also held that the government did have an obligation to “‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” This lingering admonition shadowed the administration for months as the litigation continued, and it has since felt compelled to return Abrego Garcia to the country to face criminal charges — hardly a reassuring outcome at a human level, but in some sense an important victory for due process.
And then, at the end of the summer, there were the Los Angeles raids. Roving patrols of federal agents throughout Southern California began stopping, harassing, and detaining Latinos throughout the Los Angeles metropolitan area, demanding immigration or citizenship papers. Again, lower court judges ordered the Trump administration to stop part of this practice as unconstitutional, and again the administration went to the Supreme Court for vindication. In Noem v. Vasquez Perdomo, the Supreme Court allowed the patrols to go forward, this time without deigning to offer an opinion. But Justice Kavanaugh rushed into the breach, offering his own account of the Court’s need to greenlight the Trump administration’s raids. Putting aside the various legal arguments, one especially notable feature of his opinion was how much it seemed to contradict reality. In Justice Kavanaugh’s telling, the government could only “briefly stop” people to ask about their immigration status, and it must quickly let them go if their status was lawful. It was not supposed to use excessive force. And so on.
As the dissenting Justices, the lower court record, and plenty of news reports all showed, this is not actually what was happening. Masked agents were creating panic and fear across the city by terrorizing Latino citizens at gunpoint, refusing to accept their answers, and sometimes worse. Justice Kavanaugh surely knew all of this. But perhaps his opinion was written the way it was precisely to nudge the administration into line. As Richard Re has written, Kavanaugh’s opinion “can be viewed as engaging in constraint by affirmation” — like a parent or teacher who pretends to believe the best of their charge — “Oh, I know you would never put chewing gum on another student’s seat,” he might say, knowing all too well that is what has happened, to send the message that it cannot happen again.
To be sure, not every recent decision has been like this. In many others the Court has simply ruled, silently or with minimal explanation, in favor of the Trump administration. Even as the Justices publicly reassure the country that they are there to exercise the judicial review that Marbury promised, it might seem as if that review will never be applied with any real scrutiny to the Trump administration.

Yet we are less than a year into the second Trump administration, and perhaps a Marbury-esque pattern will also emerge on an even broader level. It is no secret that the administration resists legal constraint, is ready to demonize any judge who rules against it, and that some members of the administration may be ready, even eager, to directly defy a court order. The Court knows this, as we all do. And yet the outcome of an open constitutional war between the judiciary and the executive is hard to predict.
Faced with this, we might consider a strategy that we might call “give and take.” Considering not just individual cases but a broad range of cases over two or even four years, the Court might let the executive branch win some close calls, in part to build up institutional capital for the cases where it loses. As in Marbury itself, there is potential injustice in this, depending on the magnitude of what is taken and what is given. But to understand the Court as an institution we must think of the big picture.
There is a logic to this strategy. Every time the executive branch wins in the Supreme Court it celebrates and publicly strengthens the Court’s legitimacy. These rulings can also affect the game of thrones played by different lords of the Trump administration. When the administration’s lawyers score victories in court by making legalistic arguments, their standing in the administration increases. They have more authority to press legalistic arguments in the future. By contrast, if the Court had started out ruling against the administration in every case, Stephen Miller might have convinced the President to sideline the lawyers and ignore the legal process. So perhaps, by giving the administration a long leash, the Court gives itself time to get a firm grip on the handle.
There are dangers to this strategy too, to be sure. For one thing, legalistic arguments can be used to paper over bad faith. Leah Litman and Dan Deacon describe the administration’s current strategy as one of “legalistic noncompliance.” Demanding only these legalisms can be a path to a mere semblance of due process, not the real thing. And perhaps courts should not be strategic at all — instead just calling balls and strikes and hoping that the players listen.
But in any event this strategy finds a strong echo in Marbury. Facing an intransigent president popular with his own party, Chief Justice Marshall gave the Jefferson administration a victory in the case before him, as part of a broader strategy to build the institutional strength of the Court. It is possible that we will come to see that today’s Court has been doing something similar. It may be that today’s Trump administration victories will be matched or outweighed by some future losses. It may be that soon enough the Court will rebuke the administration’s birthright citizenship order, its abuse of the Alien Enemies Act, its selective targeting of the regime’s enemies, or even the tariffs.
If this happens, the effectiveness of the Court’s ruling will partly be a function of its institutional position. It is uncertain how the administration would take a significant loss in Court. No amount of “give and take” can necessarily avert a war between the Court and the White House. But it can help to ensure that the war takes place on the Court’s strongest ground, with many members of the administration already well invested in the Court’s power and legitimacy.
But be careful. There is a coda to the Marbury story, one that reads as a warning today. In its time Marbury v. Madison was not perceived as the only test case about the ability of the judiciary to check the ascendant Jeffersonians. There loomed another, bigger dispute than the commission of William Marbury. That bigger dispute was the constitutionality of Jeffersonian legislation that had restructured the judiciary, repealing Federalist judgeships and imposing additional duties on Supreme Court Justices. This dispute was more explosive; John Marshall had already written privately to his colleagues about the legislation’s unconstitutionality, and yet Jeffersonians were pressuring the Court to uphold it. If Marbury was hoarding judicial capital for a bigger fight, Stuart v. Laird would seem to be the bigger fight.
And yet the week after deciding Marbury, the Supreme Court also ruled for the Jeffersonians in Stuart v. Laird, a case which involved the judgment of a circuit judge whose position had been abolished by the repeal of the Judiciary Act of 1801. The Court upheld the Jeffersonian legislation, which had been on the books for a couple of years by that time. The Court did not even defend the legislation on first principles, drily calling it “sufficient to observe that practice and acquiescence . . . afford an irresistible answer” and that this “practical exposition is too strong and obstinate to be shaken or controlled.” In other words, whatever the Justices might argue about how the Constitution should be interpreted, the facts on the ground had proven “too strong.” The capital that Marshall had theoretically earned by the Marbury maneuver proved insufficient.
The lesson of Stuart amends the lesson of Marbury. Sometimes a planned strategy of “give and take” can turn out to become one of “give and give and give.” That sobering lesson will haunt the Supreme Court in the coming years. If the Court is not in complete agreement with the lawfulness of the Trump agenda, will it do anything about it? Does the Roberts Court have the will and the power to do what the Marshall Court could not?

Cataclysmic world events — the fall of the Soviet Union, the Iranian Revolution, September 11, Donald Trump’s ascendancy — should cause cataclysmic, or at least fundamental, changes in thought. To be an intellectual, or a citizen, means to respond to history, to think anew, rather than be beholden to one’s oldest, fondest, but no longer useful ideas. The Hamas attack of October 7, 2023 was surely one of those history-altering events; so is the war in Gaza. But rather than inspire honest reassessments and new modes of thought, they have birthed, instead, dangerously Manichean analyses among a coterie of leftist intellectuals. For too many writers, it has evidently become impossible to keep two — much less several — thoughts in one’s head simultaneously.
Though democracy is ostensibly the opposite of monarchy, the mass culture that is American democracy has betrayed in every age a deep atavistic yearning for royalty. From the days of “King” Andrew Jackson to those of the “Kingfish,” Huey Long; from the era of the Robber Barons to the age of the movie “kings” and “queens”; from the first black demagogues, Marcus Garvey and Father Divine, to the “Prophet,” Elijah Muhammed; from the earliest Mafia chieftains to the bowing, kneeling, and hand-kissing of
I was born in Dura, in the hills of Hebron southwest of Jerusalem, into a family that carries love for the land and the memory of loss with quiet dignity. My grandfather was a Palestinian
My father was a librarian, an archivist, and a rare books collector. I grew up surrounded by books which were a hundred years older than I was nestled beside stacks of long-defunct short-lived Irish literary magazines, many of which were never digitized. My father would open his latest find to the copyright page, explaining why this particular object had value (not of the fiscal variety). The book was a link in a chain, a talisman of a continuum. Within the crush of shelved books he always knew where to find the one he wanted. In the middle of a discussion he would slowly get up, walk to a shelf, pull out a book, and read the relevant passage.
For nearly a decade,
If you want a surefire way to incite hostility on social media, I suggest flaunting the fact that you work nights and weekends — or complaining about those who do. The sea of humans will suddenly part before you into two angry mobs: the workaholics, who are prepared to sacrifice their lives at the altar of capitalism, and the restaholics, whose highest ideal is slacking off and who seethe with resentment at those ruining the curve. Or so the two groups understand one another.
Divination I
In the spring of 2024 I taught a comparative literature class at Columbia University called Unland: Writing Utopias. The word
Sometime during the year 1337, the Sienese painter Ambrogio Lorenzetti began planning one of the most innovative works in the history of European art. Frescoed on three of the four walls of the executive council room of the Palazzo Pubblico in Siena, the painting is huge — almost twenty feet high and a hundred and twenty feet in total length. It is even more colossal in ambition than in scale. The picture is the first naturalistic landscape in Western painting, and the first detailed cityscape. It also portrays a number of allegorical personifications of virtues and vices. Taken together, all these elements combine to provide one of the most acute depictions of the contrasting characteristics of tyranny and justice ever made. The earliest known title for the painting is