Marbury was the preeminent case in establishing the doctrine of Judicial Review, or the right of the federal judiciary (ultimately the Supreme Court) to decide the constitutionality of legislation and executive actions. As such, it is one of the most fundamentally important cases ever decided by the Court.

At the close of President John Adams' administration in early 1801, a political gulf had developed between his party -- the Federalists -- and that of Democrat-Republican Thomas Jefferson, the incoming president. Adams used the closing days of his presidency to appoint a variety of federal judges that were acceptable to his party and, by definition, not likely to be to Jefferson. He had his Secretary of State, John Marshall, draw up commissions for the appointments. Unfortunately, as the move was made virtually at the last minute, when Adams' term ended in the spring, Marshall had not yet delivered the commissions. In the meantime Marshall himself had become a "midnight appointee", as Adams selected him to be Chief Justice of the Supreme Court.

Upon arriving in office, Jefferson decided to annul the appointments. He ordered his own Secretary of State, James Madison, to withhold the commissions.

One particular appointee, William Marbury, appealed directly to the Supreme Court, under its constitutional obligation of original jurisdiction in the case of government ministers, to issue a writ of mandamus releasing the commission. The writ, "we command", a directive to an official or lower court to do something as a matter of law, and not subject to its discretion, is rarely used by the Supreme Court.

The Constitution very narrowly defines the right of the Supreme Court to hear cases either as original jurisdiction (i.e. not arriving as an appeal from a lower court), or on appeal. It also allows Congress to determine the rules of the Court, as well as which cases it may hear, but only among those arriving on appeal. Nonetheless, in the wide-ranging Judiciary Act of 1789, which created the federal court system of the new United States, Congress generally authorized the Supreme Court to issue writs of mandamus.

Closely comparing the Act with the Constitution, Chief Justice Marshall was forced to the conclusion that in granting the Court any rights in cases of original jurisdiction -- such as Marbury's -- Congress exceeded its constitutional authority. The Constitution grants it no power over the Court's original jurisdiction cases -- as much as the Court may or may not like to receive such a grant. That portion of the Judiciary Act was, therefore, unconstitutional.

Such a decision, while not unprecedented (lower courts had previously refused to enforce statutes that they felt violated state or federal constitutions), Marshall had plowed new ground for the Supreme Court and, while declining to accept power being offered by Congress, carved out a vast new power in Judicial Review. Paradoxically, the right of judicial review was no more contained in the Constitution than the power of mandamus.

In his opinion, Marshall justified his decision by saying that the language of the Constitution "confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." Justice Marshall's inclusion of the word "written" likely refers to Britain's unwritten constitution which, though a model for the United States Constitution in many respects, contains no independent court system to threaten acts of Parliament.

The decision in Marbury was controversial, needless to say. William Marbury was a double loser in that, upon assuming office, the Democratic-Republicans repealed the Judiciary Act of 1801 and dismissed all new Federalist judges appointed under it including, should he be seated, Marbury. In addition, in finding that it had been granted authority illegally, the Supreme Court could not help him. So goes politics, unfortunately.

There was still further turmoil. The new doctrine of Judicial Review met expected resistance among the powerful, including Jefferson, who was no fan of Federalist Marshall. Jefferson's allies in Congress arranged for the impeachment of fellow Justice Samuel Chase, presumably with the next target being Marshall himself. In the only impeachment of a Supreme Court justice yet held, the Senate failed to convict and the strategy died.

Possibly because of the political turmoil, or simply because the new nation was much less anxious to grow a despotic government, the power of judicial review was not again used by the Court until 1857 when, in Scott v. Sanford (Dred Scott), the Court overturned the Missouri Compromise of 1820 as unconstitutional.

With the passage of the Fourteenth Amendment in 1868, the Court began to turn a sharper eye to judicial review of state statutes. As the twentieth century dawned, growing activism on the Court led to the creation of the doctrine of Substantive Due Process -- which incorporated the notion of "fundamental rights", eventually including such as privacy -- to overturn congressional efforts to regulate private enterprise.

The high point of judicial review is thought by many to have occurred in Cooper v. Aaron (1958), the case arising from the Little Rock school integration crisis, in which the Court cited Marbury and stated that "the federal judiciary is supreme in the exposition of the law of the Constitution ..."

The American written constitutional system was intended as an anchor, with language broad enough, and powers sufficiently limited in scope, to allow the document to fairly govern the nation far into the future while assuring the freedom that was its foundation. Men being men, our anchor must have a chain. That chain is the Supreme Court whose duty, though ironically not spelled out in the Constitution, is to see that the document is religiously adhered to, and that the powers and privileges not specifically delegated to the government rest, in the words of the Tenth Amendment, with the people.

To the extent the Court uses its assumed power of Judicial Review to achieve that end, it does a vital service to America. The extent to which it exceeds that charge is, in the words of Justice Hugo Black, "… bad for the courts and worse for the country."