Justice Stevens leads exploration of key Court case

Friday, February 27, 2009

WASHINGTON — U.S. Supreme Court Justice John Paul Stevens emphasized the continuing importance of the famous 1803 Supreme Court case Marbury v. Madison while moderating a discussion featuring a new book about the opinion last night at the Knight Conference Center at the Newseum.

The event, hosted by the First Amendment Center and the Supreme Court Fellows Program, was a rare public appearance by Stevens, the senior associate justice on the high court.

Stevens’ appearance marked the publication by one of his former clerks, Clifford Sloan, of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court. In the book, Sloan and his co-author David McKean recreate an important moment of the country’s early history and tell the most crucial chapter on the development of the Supreme Court into one of the three equal branches of government. The book is about “the messy human context” of the case, Sloan said.

After a bitter presidential election between Thomas Jefferson and John Adams, the Supreme Court — which at the time was considered a “laughable” institution, according to McKean — found itself embroiled in a controversy involving midnight appointments and court packing. In an opinion that is still studied at law schools, Chief Justice John Marshall deftly avoided what could have been a fatal battle for the Court with the newly elected Jefferson, established the Court’s power of judicial review — the ability of the Court to declare a law unconstitutional — and at the same time limited the jurisdiction of the Court.

Sloan described Marshall’s three legal maneuvers as a “triple bank shot.” The opinion, according to Sloan and McKean, enforced the Court’s independence and raised it above the political fray.

Justice Stevens began the discussion by reading from the opening of Marbury and the three questions it addressed. The justice also related his own first encounter with the case as a first-year law student in 1945 at Northwestern University, where he studied the opinion for “six or seven weeks” with his professor and mentor, Nathaniel Nathanson. Stevens described it as “the most memorable case of my law school experience,” recalling those weeks as “the beginning of my legal career.” Sloan and McKean interviewed Stevens and Associate Justice Stephen Breyer for the book.

At one point in the discussion, and by way of an aside, Stevens questioned whether the justices should take their judicial oaths at the White House. The 88-year-old-jurist was critical of the more contemporary practice of taking the oath at the White House. “I was troubled by that as incorrect symbolism,” he said. “”I feel strongly about it.” Stevens urged a return to the tradition of having the oath administered at the Supreme Court.

When the discussion returned to Marbury v. Madison, the case’s controversial sides were examined. Questions linger concerning whether Marshall should have recused himself, or whether he should have even addressed the merits of the case without jurisdiction. A question was raised about contemporary rules regarding when the justices should recuse themselves for conflicts of interests and the like.

The remainder of the discussion focused on many of the colorful characters behind the story, including Thomas Jefferson, Justice Samuel “Bacon Face” Chase, an overly friendly Dolley Madison, and John Marshall himself — probably the most revered justice in American jurisprudence.

Marshall had been intimately involved with the case from its beginning as a close confidant of President Adams and his secretary of state (at the same time that he was chief justice of the United States). As Adams rushed to get his last-minute commissions signed and sealed during his final day in office, Marshall volunteered to help deliver them, along with his brother James. Inadvertently, some of the commissions were left behind at the State Department. Jefferson soon found the undelivered commissions and ordered them held. One of them was William Marbury’s.

The speakers also took questions from the audience, many of whom dressed in bow ties in a tribute to Stevens’ sense of fashion.

During the question-and-answer, First Amendment Scholar Ronald Collins, who organized the event, asked Stevens, “Some have described Marbury v. Madison as the great Machiavellian moment in the history of the Supreme Court. Can you think of any other such moments?”

Stevens turned, smiled, paused, and then said, “Yes,” with a big grin.

Sloan is the former publisher of Slate magazine, and a partner in the Washington office of Skadden, Arps, Slate, Meagher & Flom. McKean is a top-level Senate aide, a former chief of staff to Sen. John Kerry and the author of Friends in High Places and Tommy the Cork.

Daniel O’Neil, who has worked as an intern at the First Amendment Center, is a second-year law student at Georgetown University.

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