I just wanted to add one last bit on
Marbury, an overall sense of its political and constitutional significance. In February 1803, there was no practical way that the Supreme Court could have issued an order commanding the Jefferson administration to deliver the commission to Marbury. The order would have been ignored, exposing the Court as powerless. At the same time, a decision that simply blessed all of the Jefferson administration's actions as legal would likewise have showed the Court to be meek, willing to sacrifice its sincere views in the face of stronger political power. What Marshall crafted in his
Marbury opinion is thus rather staggering in its political genious. Marshall managed, at once, (1) to condemn the Jefferson administration's actions as illegal; (2) to assert the power of the Supreme Court to declare acts of Congress, and also the President, unconstitutional; and (3) in the process, to render a judgment that technically favored the Jefferson administration, thus preventing the Republicans from having any means of formally disobeying the opinion. Marshall asserted the power of judicial review for the Court, but then used it to invalidate a statute purporting to give the Court more power (in the form of expanded jurisdiction). As Robert McCloskey wrote, "[t]he decision is a masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking another." (The American Supreme Court (1960)). In the process, it lays the foundation for a cornerstone of our constitutional system, the means by which the judiciary shall be the ongoing guardian of our constitutional commitments. It is, in many respects, the greatest case in our constitutional history.