Professor Michael Coenen on Marbury v. Madison

Professor Michael Coenen explains why the 1803 case establishing judicial review still shapes how the Supreme Court exercises its power today. 

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This Constitution Day, Professor Michael Coenen, the Marino, Tortorella & Boyle Professor of Law, recommends Marbury v. Madison, the 1803 case widely associated with establishing the Supreme Court’s power of judicial review. But for Coenen, the case offers more than a foundational lesson in constitutional law. It raises enduring questions about the Court’s institutional power, its relationship with the political branches and when judicial review should be exercised. 

“I picked what many people would say is the most famous case in the U.S. constitutional law casebook, and that is Marbury v. Madison,” said Coenen, who teaches constitutional law at Seton Hall University School of Law. 

The case arose during the transition from President John Adams’ administration to that of his successor, Thomas Jefferson, following the contested election of 1800. Adams had appointed William Marbury as a justice of the peace, but Marbury’s commission was not delivered before Adams left office. Jefferson instructed his secretary of state, James Madison, not to deliver it. 

Marbury turned to the Supreme Court, seeking a writ of mandamus to compel Madison to deliver his commission. Chief Justice John Marshall, who had served as Adams’ secretary of state, wrote the Court’s opinion. 

The Court ruled that Marbury was entitled to his commission but could not obtain it through the Supreme Court because the provision of the Judiciary Act of 1789 on which he relied conflicted with Article III of the Constitution. In resolving the case that way, the Court claimed for itself the power to determine whether acts of Congress comply with the Constitution. 

For Coenen, the opinion’s unusual legal reasoning makes more sense when considered in the political context of the case. “If you step back and consider the political context of the case, some of the otherwise puzzling legal elements of the opinion start to make more sense,” he said. 

Marshall faced a dilemma, Coenen explained. If he ruled for Marbury, the Jefferson administration might simply ignore the order. If he ruled for the administration outright, the Court could appear weak. Marshall’s solution was to claim that the Court lacked jurisdiction to hear the case while using the opinion to declare both that Marbury should have received his commission and, more significantly, that the Court had the power to disregard acts of Congress that the Court viewed as inconsistent with the Constitution. 

That institutional dimension is central to how Coenen reads the case. “The Supreme Court of the United States occupies this dual role of being both an expositor of rules and norms about our constitutional system and a participant in that system,” he said. “It is itself an institutional actor with its own institutional interests.” 

That duality raises questions that extend beyond the case itself: the relationship between law and politics, the Court’s institutional interests and the proper scope of judicial review. 

“Whenever the Court strikes down an act of Congress, that’s in some sense an anti-democratic action,” Coenen said. “That’s telling a popularly elected legislature that a law it passed cannot have force.” At the same time, judicial review allows courts to enforce constitutional limits on government power. For Coenen, the central question is not whether the Court should have this power, but when it should use it. “It’s about identifying the right circumstances when this power should be exercised,” he said. 

For students of constitutional law, Coenen recommends Marbury as a starting point for grappling with those questions. “Marbury offers its own sort of defense of judicial review and this power that the Supreme Court has,” he said. “It’s a case that gets us talking about and grappling with that question”—one that remains relevant more than two centuries later.