During the presidency of John Adams, America’s second president, the Federalist party turned to anti-immigrant policies. In order to prevent dissent, Adams enacted the Alien and Sedition Acts, which prosecuted those who criticized his administration. The country’s other political party, Jeffersonians, felt the United States was acting like Great Britain. In the Election of 1800, Thomas Jefferson, and his Jeffersonian party, beat incumbent John Adams, becoming America’s third president. 

However, before Jefferson could take office, Adams and the lame-duck Federalist Congress passed the Judiciary Act of 1801. This act, which main purpose was to upset the incoming administration, created sixteen lower circuit court judgeships, forty-two new justices of the peace, and gave the president more control over judge appointments. Adams nominated William Marbury for a justiceship, and the Senate approved him. However, Marbury’s commission was never delivered because of the confusion in the last hours of Adams’ presidency. Appointees’ commissions were not valid until delivered by the Secretary of State. Adams’ Secretary of State, James Madison, never delivered Marbury’s commission once in power, as the Jefferson administration was outraged by the actions of their predecessor. Marbury, along with three others, petitioned the Supreme Court to compel Madison to deliver his commission. Madison and the Jefferson administration did not recognize the Court’s jurisdiction and therefore did not even send an attorney to argue the case. Article III of the Constitution describes the power of the judicial branch but does not mention the power to review the constitutionality of the actions of the other two branches. 

Chief Justice John Marshall and the rest of the Supreme Court had three questions to answer. First, if Marbury and the other plaintiffs had a right to their commissions. Second, if there was a legal remedy for failing to deliver commissions. And finally, if the Supreme Court had the authority to demand the delivery of the commissions.


Marshall’s opinion was organized rather differently, answering if the Court had jurisdiction after deciding the appropriate remedy. Justice Marshall first decided that Marbury had a right to his commission, but did not order for his commission to be delivered from the Court. Section 13 of the Judiciary Act of 1789 was deemed unconstitutional because it allowed Marbury to bring his claim to the Supreme Court, extending the Court’s jurisdiction past what is included in the Constitution. Congress, who wrote and passed the Judiciary Act, did not have the power to modify the Constitution. Marshall famously wrote, “A law repugnant to the Constitution is void.” By declaring an act of Congress unconstitutional, Marshall established judicial review. Federal courts can declare federal laws unconstitutional based on the Constitution, the supreme law of the land. State courts have the power to review state laws based off of their state constitutions. 

Marshall was purposeful in his structuring of the decision, and was able to decide Marbury’s right to his commission, defend judicial review, but also avoid issuing a judicial order. Many predicted Jefferson would have likely ignored a judicial order from the Court. 


At the time, Justice Marshall’s decision was important to contrast the anti-Judiciary message coming out of Jeffersonians. Marshall established the Supreme Court as a coequal branch of government and the central interpreter of the Constitution. 

Marbury v. Madison was the first time the Supreme Court found an act of Congress unconstitutional. Judicial review was not a novel concept before Marbury, but it was the first time the Supreme Court formally claimed it. The decision, which is now considered a foundational part of constitutional law, only became famous at the beginning of the twentieth century. However, judicial review has been exercised throughout American judicial history. In Dred Scott v. Sanford (1857), the Supreme Court struck down the constitutionality of the Missouri Compromise. In 1994, the Supreme Court unanimously struck down a law prohibiting yard signs as a violation of First Amendment rights to political speech. This decision allowed Margaret Gilleo and many others to keep their lawn signs in protest of the Persian Gulf War. 

Think Further

  1. Why do you think Marshall waited to answer if the Court had the jurisdiction in the case after answering the rest of the questions posed to the Court? 
  2. Where do you think the Judiciary’s power stands in comparison to the legislative and executive branches? What is the most powerful function of the judicial branch?
  3. What are examples of judicial review of federal laws that you think have had an impact on your life? Consider the Affordable Care Act decision in National Federation of Independent Business v. Sebelius (2012). 


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Learn More

  1. “Marbury v. Madison.” Oyez, 
  2. Gillman, Howard. American Constitutionalism, Second Edition. Volume I Structures of Government. [Virtual Source Bookshelf]. 
  3. Urofsky, Melvin I. “Marbury v. Madison.” Encyclopedia Britannica, (February 17, 2020) 
  4. “The Power of Judicial Review,” Judicial Learning Center,