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Updated: Feb 18

The cleverest negotiation trick in the

history of the world.

Imagine, if you will, that your precious feline companion is desperately in need of some life-saving medicine... and, of course, has absolutely zero interest in taking it. After multiple rejections and even a few ER-worthy skin gashes, you decide to outsmart the little darling-- you tuck the pill deep inside a Nantucket Bay Scallop, and then watch your lovable demon hungrily devour it. By sacrificing just a little, you accomplish your primary objective.

It was just such a clever ploy 221 years ago that largely made the Supreme Court of the United States (SCOTUS) what it is today.

John Marshall, SCOTUS Chief Justice from 1801 to 1835

The Supreme Court was established in Article III of our Constitution, and its structure and procedures were defined in the Judiciary Act of 1789. However, by 1803 its role was still uncertain-- as an entity separate from the executive branch, it had no muscle to actually enforce its decisions, especially in defiance of a new sitting President. But then America's fourth Chief Justice, John Marshall of Virginia, had before him a case with the potential to change that-- MARBURY V. MADISON.

National politics is certainly ugly in 2024, but things were even worse 224 years ago. Although they reconciled before their deaths, POTUS #2 John Adams and POTUS #3 Thomas Jefferson hated each other's guts. Jefferson bested Adams in the notoriously hideous election of 1800, but back then the new Presidential term didn't begin until March 4th of the following year. In the long interim and as a parting "f-you" to his incoming successor, President Adams appointed a slew of political allies to newly-created judgeships. One of the last of Adams's judicial appointees-- the Maryland Federalist William Marbury-- didn't receive his commission before Jefferson's inauguration, and the new President directed his Secretary of State James Madison to withhold actual delivery of Marbury's written and sealed commission, thereby denying him the minor technicality that was nonetheless necessary for him to actually assume the bench. So Marbury sued Madison, petitioning the High Court to order Madison to deliver his commission.

Chief Justice John Marshall knew that ruling for Marbury might well result in President Jefferson simply ignoring his order, thereby further diminishing the already nebulous authority of the SCOTUS. On the other hand, finding for Madison would likely make the SCOTUS appear subservient to the the supposedly co-equal Executive branch, again diminishing the High Court's authority. Quite the dilemma, right?

But Chief Justice John Marshall found a way to thread the needle, give everyone a partial victory, and-- most importantly-- establish and secure for posterity the Supreme Court's authority and legitimacy. To do that, Marshall and his fellow justices found that yes, Marbury was nominally entitled to his commission; and yes, the SCOTUS indeed had the authority (under the Judiciary Act of 1789) to order Madison to deliver it...

HOWEVER, the Marshall Court continued, upon close examination of §13 of the aforementioned Judiciary Act of 1789, it appears that this law contradicts Article III, §2 of the Constitution regarding the High Court's jurisdiction... and thus he and his colleagues were powerless to order enforcement of a law that was, they declared, unconstitutional and therefore invalid. Truth be told, §13 of the Act was ambiguously written and could have been interpreted either way--

"And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

§2 of Article III of the United States Constitution, meanwhile, reads thusly--

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State, —between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

(If you find it difficult to identify the discrepancy between the Constitution and the Act, you are far from alone.)

Petitioner William Marbury won something of a moral victory in that he was correct under the existing law, and the hated Jefferson Administration was wrong. President Jefferson, though mildly chastised, won the larger victory in depriving a political rival of power. And like your beloved feline companion swallowing that pricey bay scallop and thereby ingesting his life-saving medicine, the victory that President Jefferson had no real choice but to accept brought with it and established the precedent that remains with us to this day-- the prerogative of the Supreme Court of the United States to declare what the laws passed by Congress and signed by the POTUS actually mean, and whether they are constitutional or invalid... a.k.a., the right of judicial review.

And this is how the Supreme Court of the United States and thus the entire judiciary system as a whole became a truly co-equal branch of our government.


Supreme Court decisions are for us (not "we") the people. PLEASE READ THEM! I am shocked at how many staunch pro-choice or pro-life advocates have never actually read Roe v. Wade or Planned Parenthood of Pennsylvania v. Casey or, more recently, Dobbs v. Jackson Women's Health Organization. Similarly, I've yet to meet either a gun enthusiast or gun opponent who has actually read D.C. v. Heller. It's really easy to look them up... and I dare say irresponsible not to. Googling the cases yields multiple hits, and you may find every SINGLE one of them at the LIBRARY OF CONGRESS.

Meanwhile, for quick reference and some essential reading, HERE is a collection of the 47 most impactful decisions in SCOTUS history.

When reading SCOTUS decisions, it is very important to distinguish between not liking a decision and disagreeing with its underlying reasoning.

In key decisions from a split Court (i.e., not a unanimous decision) it is worth reading the dissenting opinions as well as the majority opinions.

And finally, for better or worse and thanks to the landmark precedent set by Marbury v. Madison, the Supreme Court of the United States has the last word on what the law is. It has been said that High Court is NOT infallible because it is always right; it is always right because it is, with the force of 2+ centuries of tradition, the final authority on all questions that come before it.

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