Introduction
Marbury v. Madison is discussed on The Bob Zadek Show as the Supreme Court case that established the Court’s power to determine whether the conduct of the other two branches of government is constitutional. Bob Zadek calls it one of the earliest and perhaps the most important Supreme Court cases, and says it involved a battle among Thomas Jefferson, John Adams, James Madison and John Marshall. He dates the decision to February 24, 1803, and says the Court claimed a power it still retains. Debunking Inequality Myths with Ed Conard (2017)
The case enters the show’s discussion of midnight regulations through the Midnight Judges Act of 1801. Guest Sam Batkins says John Adams had what was called the Midnight Judges Act of 1801, which gave rise to arguably the most important Supreme Court opinion of all time, Marbury v. Madison. Batkins offers this as an illustration of the broader midnight period — the almost three-month stretch after Election Day and before the next president is inaugurated, when presidencies are typically very active in regulating. A Lame Duck’s Last Stand (2017)
Midnight regulations and the Midnight Judges Act
Batkins describes midnight regulations as anything issued after Election Day and before the next president is inaugurated, and compares the period to Cinderella rushing to her carriage before it turns into a pumpkin. He says the notion of rushing judges out the door in 1800 or regulations out the door in 2017 is why the period is broadly called the midnight period. A Lame Duck’s Last Stand (2017)
Bob Zadek’s framing of the 1800 episode is personal: he says Adams was so angry at losing to Jefferson that he did not stay for the inauguration and was on a coach going home. Bob’s broader point is that presidents do not go quietly into the night at the end of their terms, and that midnight regulations are rushed through, which supports assumptions about their cost and quality. He argues they are more dangerous, perhaps more destructive, and perhaps not as well thought out as regulations issued during the normal operation of a presidential term. A Lame Duck’s Last Stand (2017)
Batkins supplies the numbers behind the comparison: the Obama administration averaged roughly about 45 rules out of the White House every month in 2016, while the most recent December saw close to 100 — 99 rules. He asks whether the doubling of regulatory output was done because of good public policy or because President-elect Trump won, and says he is pretty confident the answer is the latter. A Lame Duck’s Last Stand (2017)
Judicial review and deference
In a 2020 episode, Bob Zadek invokes Marbury v. Madison while questioning guest Josh Blackman about deference. Bob says that ever since Marbury v. Madison, the Supreme Court has assumed the responsibility of judicial review, making it the guardian of the Constitution, and that one of its roles is to step in and protect the country from unconstitutional extension of acts of power by the legislature or the executive. He asks whether Blackman’s phrase “screwed up” means enacted legislation that violates the Constitution rather than a bad policy decision. Eight-Dimensional Chess (2020)
Blackman agrees that he was being glib, and says that unless there is a clear violation of the Constitution, the court will simply step out. He notes that the Constitution does not always give clear guidance and that judges sometimes have to make judgments and use their own discretion. He says he is not a fan of deference in all contexts and thinks there are instances where the court should be a little bit more muscular, and that once courts start shedding deference they become something of a super-legislature. Eight-Dimensional Chess (2020)
Blackman’s account of deference is historical: the elected branches are accountable, while Supreme Court justices are not elected, serve for life and have life tenure, so the preference is for the elected branches to make tough decisions. He says the model of deference was very popular during the New Deal and the 1930s, but that in the 1950s and 1960s the court started creating exemptions and exceptions where deference would not be warranted, a move away from deference that paved the way for the court to assert broad power over all manner of social legislation. Eight-Dimensional Chess (2020)
Original meaning and the source of judicial power
In a 2020 episode with Randy Barnett, Bob Zadek argues that the Supreme Court has been brought into battle and forced to become a legislator by abdication of the other branches, and asks whether the Court is accumulating far more power than it was designed to handle. Amy Coney Barrett on Trial (2020)
Barnett answers yes and no. He says the Supreme Court’s power is the same as it has always been — the power of judgment, the power to say whether something the legislature or the executive branch is doing is constitutional or unconstitutional — and that if it is constitutional the other branches may continue, while if it is unconstitutional they have to stop. He says that even though some conservatives question this, it is the original meaning of the judicial power, and that it is not something invented by John Marshall in Marbury v. Madison. Amy Coney Barrett on Trial (2020)
What has changed, Barnett says, is the criteria the court uses to decide whether something is constitutional, which returns to the originalism versus living constitutionalism debate. He says the court’s power is the same but its discretion in exercising that power has been greatly expanded, and that it has made errors in both directions — recognizing rights that may not actually be rights, and failing to enforce constraints on government at both the federal and state level. He says he would not analogize the court to the legislature but to “We the People,” because “We the People” are the ones that supposedly speak through the Constitution, and the Supreme Court is usurping the role of the people, not the role of the legislatures, since the legislatures also are supposed to be servants of “We the People.” Amy Coney Barrett on Trial (2020)
Across episodes
The topic appears in three episodes spanning 2017 to 2020. In the 2017 midnight-regulations episode, Sam Batkins and Bob Zadek treat Marbury v. Madison as the product of the Midnight Judges Act of 1801 and as an illustration of rushed end-of-term activity; in the same year’s inequality episode, Bob Zadek narrates the case’s date and participants. By 2020, with Josh Blackman and Randy Barnett, the case becomes a reference point in arguments about judicial deference and the original meaning of the judicial power — Blackman treating judicial review as an assumption the Court has held since Marbury, and Barnett disputing that John Marshall invented the judicial power in that case. The excerpts show the case moving from a historical anecdote about midnight appointments to a contested premise in debates over how much discretion the Court should exercise.
What the sources do not cover
The excerpts do not state what Marbury v. Madison held, which provision of law or which amendment it turned on, or the outcome for William Marbury. They do not give the name of the Midnight Judges Act’s formal title beyond what Batkins calls it, nor the state or city in which any of the events occurred. The excerpts also do not describe the National Constitution Center’s account of the case beyond Bob Zadek’s recommendation of it.