Marbury v. Madison Returns! The Supreme Court Considers the Scope of “Judicial” Power

Marbury v. Madison Returns! The Supreme Court Considers the Scope of “Judicial” Power

Legal Sidebari

Marbury v. Madison Returns! The Supreme
Court Considers the Scope of “Judicial” Power
January 16, 2018
Every first-year law student learns about Marbury v. Madison. In the landmark 1803 opinion by Chief
Justice John Marshall, the Supreme Court established the basis for judicial review and set out the
limitations of its own jurisdiction, forming the foundation for the Court’s role in U.S. government. It now
appears that the scope of one of the major holdings of Marbury is back before the Supreme Court. In
Dalmazzi v. United States, an appeal from the Court of Appeals for the Armed Forces (the “CAAF”),
consolidated with Ortiz v. United States and Cox v. United States, the Court has taken the relatively
unusual step of granting a third party amicus, University of Virginia (UVA) law professor Aditya Bamzai,
oral argument time in which to argue that Marbury’s interpretation of the Supreme Court’s jurisdiction
under Article III prevents the Court from exercising jurisdiction in any appeal from the CAAF.
This aspect of Dalmazzi, which is to be argued on January 16, is significant for Congress. The Supreme
Court’s jurisdiction to hear CAAF appeals rests on a statute, 28 U.S.C. § 1259. The Court has never
considered the constitutionality of this statute. If the Supreme Court agrees with Professor Bamzai that
Marbury renders 28 U.S.C. § 1259 unconstitutional, it would be striking down a federal statute and
constraining Congress’s ability to provide for direct review in the Supreme Court. On the other hand,
Professor Bamzai argues that a contrary holding could conceivably enable Congress to have the Supreme
Court review “any adjudicatory decision,” even those made by executive agencies. This Sidebar provides
background on Marbury and the upcoming Dalmazzi case, and concludes by exploring the potential
ramifications of the jurisdictional question Dalmazzi poses.
A Brief History of Marbury v. Madison. The facts of Marbury are intertwined with the first major
transfer of power between political parties in American history. In March 1801, at the tail end of the John
Adams Administration, weeks before Thomas Jefferson was sworn in as president, the lame-duck
Federalist Congress passed the Judiciary Act of 1801, creating a number of new judgeships. On his way
out of the door, President John Adams was signing commissions for these new seats down to the very last
minute.
William Marbury, a Federalist Party leader from Maryland, was awarded one of these last-minute
commissions. Although it was signed, the actual piece of paper evidencing the commission was not
delivered in time. When Jefferson took office the next day, he ordered his Secretary of State, James
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Madison, to withhold the document. Marbury, seeking a court order forcing James Madison’s hand, filed
for a writ of mandamus in the Supreme Court. The Court took the case in February 1803.
Chief Justice John Marshall wrote the opinion for a unanimous four-member Court. Marshall concluded
that though Marbury had a right to the commission and it was a “plain case for a mandamus,” the
Supreme Court had no jurisdiction to hear the case. In so doing, he held that Section 13 of the Judiciary
Act of 1789, which he interpreted to provide the Supreme Court with the power to issue writs of
mandamus as an original matter, was unconstitutional. In holding the statute unconstitutional, Marshall
established the power of “judicial review”—that is, the federal judiciary’s authority to assess the
constitutionality of statutes enacted by Congress and to invalidate laws that violate the U.S. Constitution.
Marshall’s reasoning for holding Section 13 of the Judiciary Act of 1789 unconstitutional relied on the
text of the Constitution, and in particular Article III, Section Two, which only provides for original
jurisdiction in three specific instances: “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...”
According to Marshall, the Supreme Court’s “original” jurisdiction is limited to the three types of cases
listed in Article III. Marbury’s suit did not involve any of the three cases, so in order for mandamus to be
proper, “it must be shown to be an exercise of appellate jurisdiction.” As Marbury’s application for
mandamus was not an appeal of any kind, it could not fit within the Supreme Court’s jurisdictional
limitations under the Constitution and the case had to be dismissed.
Background of Dalmazzi. On the surface, Dalmazzi would seem to have little to do with Marbury.
Dalmazzi and the two cases with which it is consolidated are appeals from the CAAF. Each case involves
a member of the armed forces who was convicted by a military judge of a crime in a court martial. Each
of the petitioners then appealed their case to their respective Court of Criminal Appeals (CCAs), which
affirmed the petitioners’ convictions. Now, the petitioners assert they are entitled to new hearings before
the CCA because the panels that affirmed their convictions had one or more military judges that were
simultaneously serving as judges of the U.S. Court of Military Commission Review, an intermediate
appellate court for military commissions. Petitioners argue that for statutory and constitutional based
reasons, simultaneous service is unlawful.
The military courts martial system has three levels. The lowest level is a court martial, which has
jurisdiction over all offenses under the Uniform Code of Military Justice. Appeals from courts martial go
to one of four CCAs, one each for the Army, Navy-Marine Corps, the Air Force, and the Coast Guard.
The top level of the military courts system is the CAAF, which is made up of five civilian judges. Those
judges are not “Article III” judges—though they are appointed by the President with the advice and
consent of the Senate, they serve for fifteen-year terms, in contrast to the tenure during good behavior
provided for members of the federal judiciary by the Constitution. In ordinary cases, the CAAF has
discretion to accept review from the CCAs, which it does sparingly. In 2016, the CAAF granted 66
petitions for review from the decisions of the CCAs.
Originally, there was no avenue for an appeal of the CAAF’s decisions. In 1983, Congress enacted 28
U.S.C. § 1259, which grants the Supreme Court jurisdiction to hear appeals from the CAAF. The Supreme
Court has reviewed only nine such cases since Congress enacted Section 1259.
Jurisdictional Dispute. Although there were nine previous Supreme Court appeals from the CAAF, no
previous case considered the jurisdiction question. No party to Dalmazzi contests the validity of 28 U.S.C.
§ 1259 or whether the Supreme Court has jurisdiction generally to review decisions of the CAAF.
However, after the petition for review was granted, Professor Bamzai, who teaches and writes about civil
procedure and the federal courts at UVA, filed an amicus brief on his own behalf to argue that the
Supreme Court lacked jurisdiction in this or any other case on appeal from the CAAF.

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First and foremost, Professor Bamzai argues that Marbury prohibits the Court from hearing the cases
because Article III, Section 2 only allows the Court to hear a case like this if it arises under the Supreme
Court’s “appellate” jurisdiction—as Marbury explained, it cannot be original jurisdiction because it does
not involve any of the three specified types of original jurisdiction and it involves “revis[ion] and
correct[ion] in a cause already instituted.” However, the Court can only validly exercise appellate
jurisdiction in cases arising from an earlier exercise of the “judicial power.” The question, then, is
whether the CAAF exercises the “judicial power” when it issues its rulings. The CAAF is an executive
branch entity—the judges are not Article III judges, they serve 15-year terms, and they can be terminated
by the President for cause. As a result, according to Professor Bamzai, they cannot exercise the “judicial
power” in the way that term is used in the Constitution; they are essentially executive officers. The CAAF
judges are, in Bamzai’s view, little different from James Madison, the Secretary of State in Marbury.
Bamzai argues that the U.S. Constitution bars the Supreme Court from reviewing CAAF decisions, just as
it barred review of Madison’s decision not to deliver the commission in Marbury. Professor Bamzai also
argues that the Court’s precedents—particular the 1863 case Ex Parte Vallandigham, which concluded
that the Supreme Court lacked jurisdiction to review proceedings of a military commission—requires the
Court to dismiss the Dalmazzi case as well. Lastly, Professor Bamzai argues that “fundamental
separation-of-powers principles” require dismissal, particularly the principle that the Court not issue
orders directly to executive branch officers.
The United States’ brief spends seven pages arguing against Professor Bamzai’s points. With respect to
Marbury, the United States argues that despite not being an Article III court, the system of courts-martial
established by Congress stands on similar footing to the territorial courts, the courts of Private Land
Claims, or the courts of the District of Columbia—other courts established by Congress for which the
Court has previously held that it has valid appellate jurisdiction. Similarly, the United States argues that
Vallandingham is distinguishable because at the time of that case there was no statutory jurisdiction—in
this case, there is a valid statute. At bottom, the United States’ argument is that Congress has the power in
the case of “unique historical exceptions”—like territorial courts and courts-martial—to create non-
Article III courts and may validly provide for appellate review of those decisions in the Supreme Court.
Conclusion. It is impossible to say what the Court will decide on the jurisdictional question, but
with the oral argument time provided to Professor Bamzai, it seems almost certain that the Court
is interested in whether it has jurisdiction to hear the case. Whether the Court follows or
distinguishes Marbury v. Madison it will have future consequences beyond military courts-
martial on the jurisdiction of the Supreme Court—it could permanently limit Congress’s ability
to utilize the Supreme Court as a direct reviewing body in cases arising from non-Article III
courts. A ruling that the Court lacks jurisdiction could necessitate Congress, if it wishes to
preserve Article III review of the CAAF decisions, to amend 28 U.S.C. § 1259 to provide for
intermediate review in a lower federal court. Alternatively, Congress could rely on habeas
review of courts martial, as was done before 1983. The Court is scheduled to hear arguments in
Dalmazzi on Tuesday, January 16, 2018, and a decision is expected by early summer 2018.

Author Information

Wilson C. Freeman

Legislative Attorney

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