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Book Review: 'The Great Decision' by Cliff Sloan and David McKean

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By David C. Frederick
Sunday, May 17, 2009

THE GREAT DECISION

Jefferson, Adams, Marshall, and the Battle for the Supreme Court

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By Cliff Sloan and David McKean

PublicAffairs. 258 pp. $26.95

A cornerstone of our democratic republic is judges' ability to decide cases challenging the constitutionality of congressional statutes and executive-branch actions. But the Constitution's framers left the existence and scope of that power ambiguous, and it took a Supreme Court decision to establish the arrangement we now take for granted. For the first three presidential election cycles, dominated by George Washington and the Federalists, such matters were of little practical concern. But the 1800 election unveiled schisms in the body politic that produced the most important decision in the Supreme Court's history, Marbury v. Madison.

The case originated in the final days of John Adams's presidency, when he tried to appoint as many Federalists as possible to positions established in legislation passed by the outgoing Federalist-majority Congress. A handful of commissions for justice of the peace remained undelivered when incoming Democratic-Republican President Thomas Jefferson took office. Jefferson ordered his secretary of state, James Madison, not to deliver them, and a disgruntled office seeker, William Marbury, sued to have his commission honored.

In "The Great Decision," Cliff Sloan and David McKean draw primarily on secondary sources, along with some contemporary newspaper accounts, to paint a vivid picture of intense political conflicts between the Federalists and Jeffersonians. In so doing, they skillfully present the reader with a political thriller.

Less successful are the authors' attempts to answer the crucial questions of how and why Chief Justice Marshall fashioned his brilliant holding in the case. The Court denied Marbury his commission because the Act of Congress underlying the suit unconstitutionally sought to expand the Supreme Court's jurisdiction. The case established a great principle, that "it is emphatically the province and duty of the judicial department to say what the law is," as Marshall wrote, and that "if two laws conflict with each other, the courts must decide on the operation of each." But in doing so, as the authors note, "bizarrely, the Supreme Court had to rule against itself." Walking a tightrope, Marshall's opinion for the Court asserted the pre-eminence of the Supreme Court to interpret the Constitution while avoiding a confrontation with the executive branch.

If the authors may be faulted for not offering a definitive account of the historical sources of Marshall's inspired decision-making, their book provides a colorful description of the tumultuous times in which the Court rendered its landmark judgment. And the book's implicit references and comparisons to our own politically divisive times will not be lost on the attentive reader.

David C. Frederick is a Washington lawyer who has argued several cases before the Supreme Court.


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