One decision makes history

Longtime John KerryJohn Forbes KerryShould President Trump, like President Obama, forsake human rights in pursuit of the deal with a tyrant? GOP Senate report says Obama officials gave Iran access to US financial system Democrats conflicted over how hard to hit Trump on Iran MORE staffer McKean teamed up with his Harvard roommate to tackle one of the most important Supreme Court decisions in American history.

McKean’s book The Great Decision, co-authored with Slate publisher Cliff Sloan, examines Marbury v. Madison, the landmark case that established judicial review.

The case has its roots in the controversial 1800 presidential election. A tie in the Electoral College sent the election to the House of Representatives, which named Thomas Jefferson the nation’s new commander in chief. President John Adams and his Federalist Party decided to use the lame-duck period to expand the third branch of government. Under the Judiciary Act, Congress increased the number of federal judges and Adams quickly signed their commissions. There was one commission that didn’t get delivered — the one to William Marbury.

Marbury petitioned the Supreme Court to force new Secretary of State James Madison to deliver the documents. The court denied Marbury’s petition and ruled the Judiciary Act unconstitutional — the first time in the court’s history that kind of ruling was made about a law.

McKean talked to The Hill about the case, the history of the Supreme Court and the influence Chief Justice John Marshall had on our judicial system.


Q: Why did the two of you decide to focus on this case?

It’s the one case that every first-year law student reads. It was a messy human saga that pitted John Marshall against President Thomas Jefferson. They were cousins and they detested each other.

Q: And Marshall was one of the biggest influences on the court — not just on case law, but he started the trend of justices wearing black robes.

Marshall was a close adviser to Adams. He became chief justice but he was secretary of State [for Adams]. … Marshall signed the Marbury Commission and his brother left it on the desk.

Q: It was surprising to learn when Washington was being designed, there was no building designated for the Supreme Court.

They found a room in the Capitol. … That is where the court met. … They didn’t get their building until the 20th century. … Another interesting part of the Marbury case is that one of the justices had gout and couldn’t walk to the Capitol. They met in a hotel and decided the case in the hotel parlor.