QUESTION: Although Marshall ultimately ruled that the Court lacked jurisdiction, he first investigated whether Marbury had a right to the commission, if laws could afford him remedy, and then if the court can issue the remedy. Shouldn't the first question for the court be whether it has jurisdiction?
ANSWER: Nice point. Yes, he should have, at least if we are applying the rule of Steel Co. that the Court cannot say anything about the merits before it resolves that it has jurisdiction. Perhaps these rules were not quite as well established in 1803. Or perhaps Marshall just could not resist the opportunity to tell the Jefferson administration that it was acting illegally.
QUESTION: Further, Marshall's 2-step analysis of jurisdictional question (statutory and jurisdictional as you illustrated) is confusing. He first thought that the Court had jurisdiction and then held that it didn't. How can he take the case based on the presumption that the judiciary act gave him jurisdiction and later rule the same act as unconstitutional?
ANSWER: With due respect, I don't think that accurately captures what happened. He never thought that the Court had jurisdiction, nor did the Court "take" the case. The case came to the Court, and it really had no choice but to resolve it. For the Court to have jurisdiction, it must have been granted jurisdiction by Congress. So the first question to ask is statutory -- did the Judiciary Act confer jurisdiction on the Court in a case such as this. It makes sense to address the statutory question first, for if the statute does not confer jurisdiction, the case is over, and the Court need not address the constitutional question. Unlike other choices Marshall made, this choice of addressing the statute first is actually the judicially modest one.
QUESTION: Although the Court needs to have jurisdiction at all times, it seems rather odd that the same Act that initially gave the jurisdiction, took it away later.
ANSWER: Again, I would disagree with this characterization. According to Marshall's reading, the statute did confer jurisdiction (or at least purported to). The Act never took away jurisdiction. Rather, the Court held that the provision attempting to confer jurisdiction violated Article III, and thus was null and void (at least as applied here). Jurisdiction was lacking not because of the Act, but because the Act was inconsistent with Article III.
QUESTION: On that note, when does a law become unconstitutional? The day of the verdict? As I understand, the verdict does not have any retroactive effect, correct?
ANSWER: Essentially, yes, the moment of the verdict, though it can be applied to any decision currently pending -- that is, any case in which the federal courts have yet to render a final judgment on which the time for an appeal has run. Moreover, there are some decisions that are, indeed, applied retroactively, in the sense that persons can challenge their prior adjudications (such as prisoners applying a new rule concerning their sentencing). But this is a very complex question, with lots of twists and turns.
QUESTION: Finally, could Marbury have filed the case in a lower court as the Supreme Court didn't have jurisdiction? It probably wouldn't buy him anything given the political situation, but technically he could, right?
ANSWER: Yes, he could have. But recall that Marbury and Marshall were on the same side in the larger political fight with the Jeffersonian Republicans, and eliminating the jurisdictional problem would have eliminated the Court's opportunity to talk about judicial review . . . .