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
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