It’s POTUS v. SCOTUS on Marbury v. Madison and judicial review

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By Caroline Curran, Reporter

Oh-Bama, what a thing to say!

Turns out our president—you know the Harvard Law-educated, self-proclaimed constitutional scholar—has some, er, misgivings about the Supreme Court and its role in shaping law.

I guess Barack Obama missed the day Harvard law professors went over Marbury v. Madison, which was mostly likely the first year, if not the first week of law school.

We know the president doesn’t like those who oppose him, anything he says or anything he does. Remember the State of Union speech two years ago when he berated the justices like they were naughty school children in front of the entire country?

That was embarrassing.

But now that those same justices will decide the fate of his baby—Obamacare, that is—the gloves are off.

So, here’s what our constitutional scholar president said about the justices’ audacity to consider the constitutionality of his healthcare law:

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama proclaimed.


Forget Marbury v. Madison in law school. Where was Obama in his first-grade social studies class, you know the class where you first learned about the three branches of the federal government and their powers?

Marbury v. Madison came down to this: On his last night as president, John Adams made all these late-night appointments of his buddies to posts like circuit judges and justices of the peace, things of that nature.

I doubt it was all that unheard of. But when his successor, Thomas Jefferson, took office, he was none too happy about the sweeping midnight appointments.

Adams and Co. made the 58 appointments under what was called the Organic Act, which was nothing more really than an attempt by the Federalists to take control of the federal judiciary before Jefferson took office.

But the commissions were not delivered before Adams’ term as president expired and, not surprisingly, Jefferson refused to honor the judicial appointments, arguing they were invalid because they were not delivered before the expiration of Adams’ term.

So, then we have our protagonist, William Marbury, who was an intended recipient of one of the justice of the peace commissions. He applied directly to the Supreme Court for a writ of mandamus to compel secretary of state James Madison to deliver the commissions, which the court has the jurisdiction to do.

So, one of the key questions that had to be answered by the Supreme Court was if they, in fact, had the legal authority to overturn acts of Congress if they are determined to be unconstitutional.

Lo and behold, the answer was yes, and with that, the 1803 case of Marbury v. Madison established judicial review.

Truly, I don’t know if it’s more astonishing that a Harvard-educated, self-proclaimed Constitutional scholar doesn’t know this, or that our President doesn’t know this.

Recently a federal judge, rightfully alarmed at our president’s lack of knowledge or blatant disregard about judicial review and the role of the Supreme Court, issued a homework assignment of sorts to the Obama Administration Justice Department, seeking clarification on what the DOJ sees as the court’s role in judicial review.

Of course, U.S. Attorney General Eric Holder obliged, writing a response to the judge’s request, but let’s face it, at least on this round it’s POTUS: 0, SCOTUS 1.

I’ll tell you what. I know a few judges and one thing’s for sure, Mr. President, payback’s a bench.

Caroline Curran is a staff writer and columnist at The Brunswick Beacon. Reach her at 754-6890 or ccurran@brunswickbeacon.com. Follow her on Twitter at @cgcurran.