SPEAKER 1: Harvard Law School,
as we're all aware today,
is 200 years old.
And that gives us all a
chance to think about,
and even better,
to experience some
of the most interesting and
pressing issues in the law
then and now.
And in this room,
admittedly, this afternoon
we'll be thinking about an
issue of central and lasting
importance that came
up 214 years ago,
which means, sadly, that
the justices, the advocates,
and the parties in the first
Marbury versus Madison were all
denied even the possibility
of acquiring the education
that all of today's
participants, and all of you,
can be proud of.
So I hope you indulge me.
I want to just take a moment
to set the stage for today's
proceedings for the case
that most famously held
that federal judges can
determine and decide
the constitutionality of
congressional statutes.
Briefly, the story that
was brought to the Marbury
versus Madison court is this.
In March of 1801,
at the very end
of the Federalist
administration of John Adams,
the president made a
flurry of appointments.
One of those was
for William Marbury
to be a Justice of the
Peace in Washington, DC.
Marbury's commissions to that
post was signed by Adams.
It was sealed by the
then Secretary of State.
But it was not delivered by
the brother of that Secretary
to whom it was entrusted.
Marbury didn't get it.
Thus, this and other
commissions were
found on the first day
of work of the Republican
Administration of
Thomas Jefferson.
And his own Secretary
of State, James Madison,
did not deliver that commission.
And so this being
America, Marbury sued.
The case was brought as a
trial in the first instance
in the Supreme
Court, and today will
be argued as if it were
essentially cross motions
for summary judgment.
The court there recognized
three questions.
Did Marbury have a legal
right to that commission?
If so, was there a legal
remedy for the deprivation
of that right?
And if so, was that remedy
one of mandamus by the court?
And as you may know,
the court answered
that Marbury did
indeed have a right,
there was indeed a
remedy for that right.
But Chief Justice Marshall in
1803 wrote for the court that
the Congress had acted
unconstitutionally when it
enacted a statute giving his
court authority to issue such
a writ of mandamus and thereby
announced the resident rule
that the court is empowered
to refuse to give effect
to a statute that cannot be
squared with the Constitution.
Marbury did not get to become
a Justice of the Peace.
And there are many questions
about both the case
and its prosecution.
But today, for our
enjoyment and edification,
our oralists and
the panel are going
to focus on a core and enduring
aspects of that litigation,
the role and the
power of the court
in our constitutional scheme.
Laurence Tribe, 1966, holds
the brief for William Marbury.
His historical
counterpart, Charles Lee,
the former attorney general
in the Adams administration,
was destined to become the uncle
of another Lee, General Robert
E. Lee, born just a few
years after the argument.
Kathleen Sullivan here
steps into the role
of Levi Lincoln, the attorney
general for the Jefferson
Administration.
But unlike Lincoln,
she will actually
and most ably argue the case.
It is hard for us
to imagine today,
but Lincoln declined
the chance to argue
Marbury versus Madison--
[LAUGHTER]
--and remained silent.
So a little more background
on our advocates,
who definitely need
no introduction,
but are going to get a little.
Luminaries in constitutional
and appellate law.
Larry was born to Russian
Jewish refugees in Shanghai
about two months before the
Japanese occupied that city
and then bombed Pearl Harbor.
His father, who was born near
Minsk, had become a US citizen
and thus was taken to a
prison camp by the Japanese
as an enemy alien.
Larry came here to the United
States with his family,
speaking only Russian,
at the age of five.
After public schools
in San Francisco,
he entered Harvard at
the ripe old age of 16.
He graduated with a
summa in math at 20,
clerked for Justice
Potter Stewart,
got tenure here at
the law school at 29,
became a university
professor in 2004,
wrote his iconic treatise
on the US Constitution.
He's currently working on a
book about impeachment, which
is coming out next spring.
He helped to write
the constitutions
of South Africa, the
Marshall Islands,
and the Czech Republic.
He's been elected to
the American Academy
of Sciences and the American
Philosophical Society.
And is most proud, in all these
accomplishments, of what he
has done with his many
students, not only
his longtime friend and
temporary adversary,
Kathleen Sullivan, but two of
our panelists today, Patricia
Millett and Merrick Garland.
Many of you saw two other of his
students yesterday, probably,
John Roberts and Elena Kagan.
Perhaps also David Barron
of the First Circuit.
And a slew of other
federal judges, academics,
luminaries in the law, and
many, many, many friends.
Kathleen Sullivan began
her constitutional career
in Larry Tribe's
classroom and went on
to scale the highest peaks
of the legal profession.
She has 11 Supreme Court
arguments and innumerable
appellate and state court
arguments to her credit,
and is widely recognized
as one of the brightest
stars in appellate advocacy,
which, I should say,
has ventured into every
manner of constitutional and
commercial law.
She is the first, and
still only, female
named partner at an
Am Law 100 law firm.
And prior to her conquest
of the courtroom,
she made a stellar
name for herself
in the classroom as
a beloved professor
here at Harvard, where her
grateful students chose her
for the first Sacks-Freund
Award for Teaching Excellence.
She then went to Stanford,
where she became the first woman
dean of any of their schools.
And she has brought
thousands of students
to a better understanding
of the Constitution
and for the last
20 years, has been
a principal author of the
Gunther Casebook on Con Law.
But of all of her achievements,
I hold out to you today
the fact that when she
was here in this room,
she was the victor and best
oralist in the Ames Moot Court
Competition.
[CHEERING]
And last, a few words about
our distinguished panel.
Judge Jane Kelly, she usually
sits on the Eighth Circuit
Court of Appeals.
She was an undergrad at
Duke before coming here
for law school.
She then clerked for Judge
Donald Porter, the District
of South Dakota, and
then Judge David Hanson
on the Eighth Circuit.
She taught law for a year at
the University of Illinois
and then went to become
a federal public defender
in Cedar Rapids,
Iowa, until she was
confirmed in 2013
to the court where
she began her appellate career.
Judge Joseph Greenway spends
his days on the Third Circuit.
Before Harvard, he went to
Columbia as an undergrad.
And after Harvard, he clerked
for Judge Vincent Broderick
of the Southern
District of New York.
He spent some years
in private practice.
Then he became an
assistant US attorney
in New Jersey, ultimately
chief of narcotics.
He then went in-house, consul
at Johnson & Johnson until 1996,
when he was confirmed as a
district judge in New Jersey,
and from there, to
the Third Circuit.
He has also served as a
professor teaching trial
practice and the Supreme
Court at Rutgers, Cardozo,
and Columbia.
A little out of order,
Patricia Millett
makes her professional
home on the DC Circuit.
She was an undergrad at
the University of Illinois
at Urbana-Champaign,
then she came to Harvard.
In private practice
at Miller & Chevalier
before clerking for Judge Thomas
Tang on the Ninth Circuit.
And then spent four
years in the Appellate
Division, the Appellate
Section of the Civil Division
at the DOJ.
And then more than 10
years as an assistant
to the Solicitor General.
When she left the
government, she
became the co-chair of Akin
Gump's Supreme Court Practice.
And when she was confirmed
to the DC Circuit in 2013,
she had argued 32 cases
before the Supreme Court.
And last, and first,
is Chief Judge Merrick
Garland of the DC Circuit,
our own modern John Marshall.
He graduated first
from Harvard College
and then from Harvard
Law School, clerked
for Judge Henry Friendly
on the Second Circuit,
and then William Brennan
on the Supreme Court.
He then did his first tour
at the Department of Justice
as a special assistant to
then Attorney General Benjamin
Civiletti.
Turned his talents then
to Arnold and Porter
in DC, where he did complex
commercial and anti-trust
litigation.
And then returned
to the government,
first as a federal prosecutor
in the US Attorney's
office in Washington, and then
as principal associate deputy
attorney general in the
Department of Justice,
where among his notable roles
were leading the investigation
and prosecution of
the Oklahoma City
bombing and the Unabomber case.
Confirmed to the
DC Circuit in 1997,
he became Chief Judge in 2013.
And so with no further ado, I
say oyez, oyez to all of you.
Enjoy.
[APPLAUSE]
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
We have no court crier?
[LAUGHTER]
All right, in that
case, be seated.
Come to order.
Today we're going to hear the
case of Marbury versus Madison.
And we will begin with Mr.
Lee representing Marbury.
LAURENCE TRIBE (CHARLES LEE):
Thank you, Mr. Chief Justice.
And may it please the Court, in
the absence of a court crier,
may I say, God save this
court and the United
States of America.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Mr. Lee, before
we get too far, I
want to just ask
one question-- well,
a series of
questions to confront
the elephant in the room here.
So who is it that
affixed the great seal
to Mr. Marbury's commission?
LAURENCE TRIBE
(CHARLES LEE): Well,
the great seal in this case was
affixed, I think, by yourself.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): Yes.
And who was--
LAURENCE TRIBE (CHARLES
LEE): You were simultaneously
Chief Justice and Secretary
of State, a dual honor.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
And who's good for nothing
brother failed to deliver it?
[LAUGHTER]
LAURENCE TRIBE
(CHARLES LEE): Well, I
don't know that he
was good for nothing,
but it was your
brother, James Marshall.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
And whose third
cousin once removed
is the President of
the United States
who ordered Mr. Madison not
to deliver the commission?
LAURENCE TRIBE (CHARLES LEE):
Repeat that, if you would,
Mr. Chief Justice?
Third brother once removed.
I've never been good
on family trees.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Whose third cousin once removed
is currently the President
of the United States?
LAURENCE TRIBE (CHARLES LEE):
Oh, well, he is Donald Trump--
J. Trump.
[LAUGHTER]
But I think you mean
Thomas Jefferson.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
You must be living in
the future some time.
LAURENCE TRIBE (CHARLES
LEE): Back to the future
is my middle name.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
And one more question.
As they say in the musical,
Mr. Lee, who are you?
Whose second cousin are you?
LAURENCE TRIBE (CHARLES LEE):
Well, I'm your second cousin.
But we've also been good
friends for a long time.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So this all leads
to the question,
shouldn't I recuse
myself from this case?
[LAUGHTER]
LAURENCE TRIBE (CHARLES LEE):
I think not, Your Honor.
Quite seriously, I
think you should not.
It is true that you
were to have delivered
my client's commission and
didn't get around to it.
You were very busy.
You were, after all,
Secretary of State
and Chief Justice of
the United States.
Your brother was also very busy.
You entrusted it to him.
But I think he had
just been appointed
to the new federal
judicial post that
had been created in
the Circuit Court
for the District of Columbia.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Yes, one of my favorite
inferior courts.
LAURENCE TRIBE (CHARLES LEE):
It is definitely inferior,
one reason that we
didn't try to go there.
Because if we had
gone there, we might
have had to call your
brother as a witness,
and then he would have
had to recuse himself.
But we needn't call
you as a witness.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): I see.
But if you had gone there, we
wouldn't have this argument
about original jurisdiction.
LAURENCE TRIBE (CHARLES
LEE): Well, then we
wouldn't be able to
go back to the future
and everything would be ruined.
But of course, if
you recused yourself,
that would also happen.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
We'll leave the
question of recusal,
whether your opponent
wants to raise it.
You can move on to
your argument now.
LAURENCE TRIBE (CHARLES
LEE): All right.
If I may, Mr. Chief
Justice, I want
to structure my argument
around three points,
as I imagine you might,
that my client is entitled
to the commission, that the
laws of the United States
afford him a remedy for the
wrong done when he was denied
that commission, and
the right remedies
and mandamus from this court.
As to the right
to his commission,
it's very clear that he was
grievously injured when this
valuable property, a
five-year judgeship,
in what may not
sound very good--
it's also an inferior court--
but that five-year judgeship
meant the world to him.
He didn't need it.
He was wealthy.
But he wanted to serve the
United States, not just
in the Navy, where he is now,
but wearing robes of the kind
that Your Honor is wearing.
His appointment had been
made by the President.
It had been confirmed
by the Senate.
The commission had been issued
and signed by the President.
It had been stamped
by Your Honor
with the Great Seal
of the United States
on your last day as
Secretary of State.
And he, therefore, is
entitled to the commission.
PATRICIA MILLETT: Is
delivery of the commission
critical to having a
claim to the office?
LAURENCE TRIBE
(CHARLES LEE): We think
that the commission
helps, because his claim
to the office in the way--
PATRICIA MILLETT:
Is it critical?
Is it critical?
Not does it help,
is it critical?
LAURENCE TRIBE (CHARLES
LEE): In the world
as it is now, in 1803, we
don't quite regard something
like a commission as
a mere piece of paper
evidencing the position.
It is the position.
Without the commission,
he can't put on the robe.
So he needs that commission.
And it was wrongly
withheld by the President
and Secretary of State.
There was nothing
nefarious in the way
it didn't get delivered
in the first place
by the Adams administration.
That was innocent error.
But it was quite nefarious
for Thomas Jefferson
and his Secretary of State to
go beyond merely criticizing
the predecessor
administration for what
they called packing the courts.
They went further.
They tried to undo
what had been done
in terms of a vested right.
Now, future presidents
might make a similar effort.
I imagine in the future,
presidents might try to stamp--
trample all over what
their predecessors did.
But this court can establish
that that is wrong,
and it can establish that as
a principle for the history
of this country.
JOSEPH GREENWAY: Well, let's not
go to the future at the moment.
Let's stay in the present.
I like 1803.
It's a great place.
LAURENCE TRIBE (CHARLES
LEE): I'm happy here, too.
JOSEPH GREENWAY: Good.
So my question to
you, then, is you
speak of the writ of
mandamus and that you want
this court to issue the writ.
From whence is
this power to come?
Where in the
Constitution might we
look specifically to give
you the relief that you seek?
LAURENCE TRIBE (CHARLES LEE):
Well, you begin, Your Honor,
I think, by looking
at the Judiciary Act
of 1789 passed by
the first Congress.
Section 13 of that act makes
very clear that this court
has the power to--
and I read from
the language of the statute--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
I think the parties have
stipulated to the Act
giving us the power
to grant mandamus
in our original jurisdiction.
I think the question
my brother asks
is where in the Constitution
is the provision that
allows us to do that?
LAURENCE TRIBE (CHARLES LEE):
I think Article III does it.
Section 2 of Article III
says that the judicial power
shall extend to all
cases in law and equity
arising under this Constitution
or the laws of the United
States.
Now, this mandamus proceeding
is a case in equity,
because there is no
adequate remedy at law.
We want specific performance.
There's no substitute
for this particular job.
It's not money my client seeks.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
What about the second section
of Article III, the one that
says we only have authority of
original jurisdiction in two
circumstances, cases
involving ambassadors,
public ministers and
consuls, and those
in which the state is a party.
LAURENCE TRIBE
(CHARLES LEE): Well, I
hesitate to correct Your
Distinguished Honor,
but it doesn't
use the word only.
What it says is that
the Supreme Court shall
have original jurisdiction
in a class of cases--
ambassadors, public ministers
and consuls, states.
In all other cases, it shall
have appellate jurisdiction.
There are two ways to
read that language.
One way is to suggest
that it creates
a ceiling on your jurisdiction.
That is, in every
other case, you
have no original
jurisdiction but only
appellate jurisdiction.
Some have argued that
you have to read it
that way to prevent
the language from being
redundant or nugatory.
But in our view, the language
establishes a very important
principle if you read it as
establishing a floor and not
a ceiling.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Let me just say, now
that we're talking
about original
jurisdiction, I want
to coin a principle of
constitutional interpretation.
And I'm going to
call it originalism.
[LAUGHTER]
Now, I want to read to you from
Hamilton's Federalist Number
81, where he stated, "the
original jurisdiction
of the Supreme Court
would be confined
to two classes of cases,
and those of a nature rarely
to occur."
Now, since that
Federalist paper was
used to get people to
ratify the Constitution,
and since Hamilton
obviously knew
what the contemporary
meaning, the original meaning
was, why isn't that
the end of this case?
LAURENCE TRIBE (CHARLES
LEE): Your Honor,
we think that the text is far
more important than either
the subjective
intentions of people
who were as distinguished
as Alexander
Hamilton, about whom I
can imagine a play being
performed in New York.
[LAUGHTER]
Thank you.
What's important is
that the language
carries its own meaning and it
has a structural significance.
The only court in the United
States of a Federal nature
that is created by the
Constitution is this court.
If this court could not hear
cases involving ambassadors,
public ministers,
consuls and states,
no court guaranteed
by the Constitution
could, because Congress needn't
create any of the courts
that you rightly call inferior.
JANE KELLY: What if
we disagree with you?
LAURENCE TRIBE (CHARLES
LEE): I'm sorry?
JANE KELLY: What if
we disagree with you?
LAURENCE TRIBE (CHARLES LEE):
Well, if you disagree with me,
then I'm not going to succeed
in convincing you that you
have original jurisdiction.
But I am, I hope,
going to urge you,
and hopefully successfully, not
to reach that issue until you
have informed the President
that no man is above the law,
that this is a government
of laws, not men.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
You agree, though, that if
we don't agree with you,
can we strike down the act
of Congress or can't we?
LAURENCE TRIBE (CHARLES
LEE): Well, that's not yet
established, Your Honor.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, I know, but it
will be established
by the end of this argument.
LAURENCE TRIBE (CHARLES
LEE): I think you--
[LAUGHTER]
I think you ought
to have the power
to strike down an
act of Congress,
subject to this
fundamental principle.
You should not lightly attribute
to Congress, especially
to the First Congress of the
United States, a deliberate
decision to defy
the Constitution.
If you can read Article III
to avoid that constitutional
question, I imagine some day
a principle might be invented,
perhaps even more
august than originalism,
about constitutional avoidance,
in which you don't needlessly
create a clash with another
branch of government.
PATRICIA MILLETT: Let
me back up and ask,
because embedded
in this question
is the first three words of
Section 2 of Article III,
and that is "the
judicial power."
What is-- or what do
we look to to discern
what the judicial power is?
And in particular,
does it include
the authority of unelected
and unreviewable justices
to declare acts of the
coordinate branches
of government unconstitutional?
LAURENCE TRIBE (CHARLES LEE):
I think it does, Your Honor.
I think that the judicial
powers, the power
to resolve actual cases or
controversies conformably
to the law, and the highest
law of the United States
clearly is the Constitution.
It trumps, to coin a word--
[LAUGHTER]
It trumps both the
power of the President
and the power of Congress.
But we have no reason here
to think that Congress--
PATRICIA MILLETT:
How can that be?
So you're saying that after--
I mean, you would agree
that the other two
branches are also charged with
upholding the Constitution,
correct?
LAURENCE TRIBE
(CHARLES LEE): Correct.
That's their duty, but
they may fail in that duty.
PATRICIA MILLETT:
Well, if we have--
I'm trying to figure out how
we figure out who has failed.
So if we have both houses
of Congress and a president
sign a piece of
legislation, and then you
want four justices
to disagree, isn't
that a dangerous proposition?
Doesn't it put too
much power in the hands
of just a few
people, which is why
we got rid of that king thing.
LAURENCE TRIBE (CHARLES
LEE): Far more dangerous--
[LAUGHTER]
Far more dangerous
after the Revolution
is to give either
Parliament or the King,
either Congress
or the President,
who take oaths to
the Constitution,
but whose primary job is
to run the government,
to let them have the last word.
Now remember, we
are not urging you
to hold Section 13 of the 1789
Judiciary Act unconstitutional.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
We're asking you to
face the hard problem.
If we do have to do
that, you're saying
the premise of a
written constitution
is that the courts can overturn.
Is that right?
LAURENCE TRIBE (CHARLES
LEE): That's right.
It has no meaning otherwise.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So let me just ask this.
So I'm an old litigator.
And the old
litigators' prayer is,
Lord, let my opponent
have written a book.
[LAUGHTER]
You are no Publius,
but I have learned
that you have written a treatise
under the pseudonym Tribe--
[LAUGHTER]
--wherein you wrote
the following,
"the premise of a
written constitution
would not be disserved
if Congress itself judged
the constitutionality
of its enactments,
and courts simply treated the
legislative interpretation
as definitive."
Exactly the point that my
fellow justice just made.
LAURENCE TRIBE
(CHARLES LEE): And I
made the point in
the next page--
[LAUGHTER]
--or at least, the
person you're quoting
made the point that even though
the purpose of writtenness
might not be disserved, the
purposes of the rule of law
would be.
And in that section
of the treatise,
I think this Tribe fellow
said, 2 and 1/2 cheers
for judicial review,
as he thought
it was a difficult question
who should have the last word.
But I think
throughout his career,
he supposedly concluded that
judicial review made sense.
And I still think it does.
JANE KELLY: And
how do we apply it?
How do we do this?
You're saying that this
is the role of the court,
as I hear your argument.
Is there some kind of
deference that we give, call
it what you may, to
the legislative branch
in their assessment of what
statute may be, in their minds,
constitutional?
LAURENCE TRIBE (CHARLES LEE):
On this fundamental question
of law, the only
deference I think
you owe is to avoid
gratuitously ascribing
an unconstitutional purpose
to a law that could be
read to make it constitutional.
But if Congress leaves
no doubt that it
means to confer a jurisdiction
that this court concludes
that it would be
unconstitutional
for it to assume, then
the duty of this court
is to follow the higher law
and not the inferior law.
And that would mean, if you
conclude that Congress clearly
violated Article III, the
only choices you have are
to follow the act of Congress,
notwithstanding your oaths
to the Constitution.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, that would mean
your client loses.
So my question here is, is this
malpractice or is this a setup?
Was this whole
case just a setup?
LAURENCE TRIBE (CHARLES
LEE): I don't think so,
Your Honor, because if you were
to rule that Thomas Jefferson
and Secretary Madison
violated my client's rights,
but that you are without power
as the Supreme Court because
of the limited
original jurisdiction
to vindicate those rights,
you write an opinion,
we take that opinion to the
inferior court, the Court
of Appeals for the District of
Columbia, it's res judicata,
it has no problem--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
I'm sorry, if we don't
have jurisdiction,
you think our decision
is res judicata?
Is that what you're saying?
LAURENCE TRIBE
(CHARLES LEE): Well, I
think is at least highly
persuasive authority.
And I think your brother
would recognize that.
PATRICIA MILLETT: Here's
what I'm worried about.
And that is not only
the unrevealability
of these unelected
justices, but imagine
we were to come into a
time in which the court was
closely and persistently divided
and there was really just one
justice who kept making
the dispositive judgments
about constitutionality that
you would say are unreviewed,
and that one person would
have the authority to veto--
LAURENCE TRIBE (CHARLES
LEE): I can't imagine that
ever happening, Your Honor.
PATRICIA MILLETT: --to veto
the judgments of the Congress
and the President together.
Wouldn't that person
effectively be king or queen?
LAURENCE TRIBE
(CHARLES LEE): I think,
Your Honor, first, that's
quite hypothetical.
But second, in a--
PATRICIA MILLETT: Go
with the hypothetical.
LAURENCE TRIBE (CHARLES
LEE): I'll go with it.
It seems to me that in an
odd numbered set of justices,
and this court from time to
time, as now, has only six,
two of them, I see, didn't
think this important enough
to be here, or maybe
they're riding circuit.
But when there are an
odd number of justices,
it's inevitable that some
of the hardest questions
will be 5 to 4, just as some of
the decisions made by Congress
will be decided by the Vice
President breaking a tie.
JANE KELLY: But
wouldn't that mean--
LAURENCE TRIBE (CHARLES
LEE): And it seems to me--
I'm sorry, go ahead.
JANE KELLY: Wouldn't
that mean, then,
it isn't a clear case if the
justices of this court cannot
agree, and we are
4 to 2 or 5 to 1,
how can that be a clear
case that the legislative--
LAURENCE TRIBE
(CHARLES LEE): That's
a paradox in all of the law.
There are sometimes close
but clear questions.
Their closeness is evidenced
by the closeness of the vote.
People can be quite
convinced on both sides.
And in that
circumstance, we really
have no choice but to
follow the majority.
PATRICIA MILLETT: But what
about, last time I checked,
we control neither
guns nor money.
LAURENCE TRIBE
(CHARLES LEE): Right.
In fact, Alexander
Hamilton made it
a point to say that
because you have
neither force nor the purse--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So now you're willing to
go with Alexander Hamilton?
LAURENCE TRIBE (CHARLES LEE):
I liked him most of the time.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Before it was the text only.
PATRICIA MILLETT:
Well, let me get back--
LAURENCE TRIBE (CHARLES
LEE): This is not--
I'm sorry, but this is not
about the meaning of the text.
It's about the philosophy about
how we should understand it.
And we should understand this
court to be, shall we say,
the least dangerous branch.
PATRICIA MILLETT:
But you're trying
to make us much more dangerous.
And what I'm worried
about is we could issue
controversial
decision at some point
and some president might
say something like,
it's Mr. Marshall's
decision, let him enforce it.
LAURENCE TRIBE (CHARLES
LEE): That might happen.
In fact, I could easily
imagine a populist president
making that very statement.
That would be unfortunate.
But in the end, the very
fact that this court--
PATRICIA MILLETT: Unfortunate?
That could be the end of the
judicial branch, effectively.
LAURENCE TRIBE
(CHARLES LEE): I think
if you develop the kind
of prestige and legitimacy
that I am confident
the Chief Justice
will contrive to do
in his disposition--
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): I don't know.
Right now, we're working out of
this basement of the Capitol,
living in a hotel.
LAURENCE TRIBE (CHARLES LEE):
I don't think you need--
JOSEPH GREENWAY:
We've had the governor
of New York say, you know,
I don't want to be chief,
so it gets turned over to--
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): That's how I got it.
PATRICIA MILLETT: And he's
riddled with conflicts
of interest.
What prestige are
we going to get?
LAURENCE TRIBE (CHARLES LEE):
I honestly think, though,
that the fact-- you are
actually protected by the fact
that you need other branches
to effectuate your will.
You may need Congress
to appropriate money.
You may need the Executive
branch and the Marshall service
to enforce your judgments.
JOSEPH GREENWAY: But
isn't that the question?
LAURENCE TRIBE (CHARLES
LEE): What you do have is--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
You're going to name
a service after me?
[LAUGHTER]
I like it.
JOSEPH GREENWAY: But isn't
that the crux of the problem,
that we'll bring on
the ire of the people
because we are
supplanting our view
for the view of the
elected officials,
both the Presidency
and the Congress?
LAURENCE TRIBE (CHARLES
LEE): I predict, Your Honor,
that if you handle it
with the great diplomacy
and tact that I
think you can, you
will accumulate a
degree of legitimacy
because you have no
skin in the game.
That is, every other
branch is either
serving its own interests,
or the interests of a mob,
or the interests of a majority.
JOSEPH GREENWAY: But
what you want us to say
is that Secretary
Madison made a mistake.
And I'm a little concerned
about Secretary Madison,
because as a result
of this, I understand
he has some reputation
as a writer,
but he might not have any future
after this if we indeed say,
you know, poor judgment
exercised in pure conflict
with the law.
LAURENCE TRIBE (CHARLES LEE):
It wasn't just poor judgement.
I think Secretary
Madison carried out
an unconstitutional directive
from President Jefferson.
And I think that with the
courage that this court I hope
has, you will be able
to tell him that.
And I think that the
people will, in the end,
respect you for standing
up for principle.
After all, in the
Federalist Papers,
not only did they say you have
neither the power of the sword
nor the power of
the purse, they said
you have the power
of reasoned judgment,
unlike the other branches--
PATRICIA MILLETT: Who have no
power of reason or judgment?
LAURENCE TRIBE
(CHARLES LEE): I do
want to reserve some
time for rebuttal.
But let me just,
if I might, close
by saying that unlike
the other branches,
I hope you develop a
tradition of writing opinions,
maybe concurring and
dissenting opinions.
Although in your early years,
you might strive for unanimity.
And the very fact of
deliberative dialogue
within this tribunal will earn
it the respect of history.
Thank you.
[APPLAUSE]
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): General Lincoln.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Mr. Chief Justice, and
may it please the Court.
My name is Levi Lincoln,
Attorney General of the United
States, and I'm appearing
here for the Secretary
of State, James Madison.
My learned colleague,
Mr. Lee, has
urged you to avoid the serious
constitutional question here.
And I'll say in advance,
it is a question that
is interesting to
the United States,
but not of an intricacy
proportioned to its interest.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Can I just ask you, as
long as we've raised
your elephant in the room--
and by that I do
not mean the mascot
that your new Republican
Party may one day adopt.
The question was raised,
if we issue the writ,
will your client obey it?
Or will your client say
something along the lines
that my colleague suggested, Mr.
Marshall, enforce it yourself?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, that
is the first reason
why you could avoid the
constitutional question
in this case.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Yes, but what is the answer?
We'd like to know whether
Mr. Madison and Mr.
Jefferson are going to
abide by the law or not.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
My client and the
President of the United
States owe allegiance
first to the Constitution.
And if you issue such an
order without authority,
then you will be acting in
violation of the Constitution,
and they would be violating
their oaths of office
if they were to enforce it.
JOSEPH GREENWAY: Who would
interpret it in place of us?
If we say it is
constitutional, who
is it that would say it's not?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, my learned
friend has suggested
that all members of
the federal government
swear an oath of allegiance
to the Constitution.
It may be in the future that
President Jefferson might
pardon some of the unjustly
accused and convicted
Federalists--
Republicans under the
Federalist iniquitous
Alien and Sedition Acts.
And when he does so under
the First Amendment,
he's interpreting
the Constitution.
JANE KELLY: But
isn't that too late?
Isn't that too
late for the folks
who have been
indicted and sentenced
on the Alien and Sedition Act?
Don't we have to
move more quickly
to make sure that
unconstitutional acts aren't
running amok?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
I agree completely, Your Honor.
And that's why you
should, today, strike down
as unconstitutional the
apparent extension of authority
in Section 13 of the
1789 Judiciary Act
to allow you to
decide this case.
But I think-- let me
tell you two reasons why
you don't need to
get there if you want
to avoid the
showdown of my client
and the President refusing
to obey your order.
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): Just to be clear,
you want us to strike that down.
KATHLEEN SULLIVAN (LEVI
LINCOLN): If you get there.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): Yes.
But you wouldn't want us to
say more broadly that somebody
convicted for insulting
President Adams
under the Sedition Act was
unconstitutionally convicted.
You wouldn't want us to
do that or you would?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Would, absolutely.
We just didn't get there yet.
So Your Honor, if
I could go back
to how you can avoid the
constitutional question
that is raised here.
If we get there, then you
must strike down the act.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So you're in agreement
with your client,
with your opposing consul.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Yes, I was surprised that he
agreed that we should strike
down the act if we get there.
But here's how I can save you
from this constitutional clash.
The first way is
you could decide
this case is non-justiciable.
It's not a legal question,
it's a political question.
PATRICIA MILLETT:
Well, how do we
know the difference
between those two?
Do we know it when we see it?
[LAUGHTER]
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, it's a peculiarly
irksome and delicate task
to tell a member of
the coordinate branch
that he must obey an
order of the court.
How would you like it
if President Jefferson
or Secretary of State
Madison told you
whom to appoint as your law
clerks or your bailiffs?
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
I'm afraid we don't
have any law clerks yet.
[LAUGHTER]
We're open to applications,
but that has not--
JOSEPH GREENWAY: Apparently
we have no crier,
as you saw before.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, some
questions are simply
irreducibly and
unreviewably granted
to the political branches.
What if a decade from
now, our founding--
PATRICIA MILLETT: Which ones?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
The political questions.
PATRICIA MILLETT: Which are?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
The political questions.
PATRICIA MILLETT: How do we know
this is a political question?
How do we know this-- is
this a political question?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Your Honor, this--
there is no basis
in the Constitution
for what Mr. Marbury asked.
And let me tell you why you
could avoid the question.
PATRICIA MILLETT: Wait, for
what specifically did he ask?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Mr. Marbury is asking
you for an equitable--
he claims a right in equity.
What he's really asking
for is an interference
by the court in the
political prerogative of one
administration to decide
the most intimate thing
an administration
can decide, which
officers it shall appoint.
Now, as to why Mr. Marbury does
not deserve his commission,
he's asking for it under equity.
He's asking it, in a
sense, under common law.
But did you hear
my learned friend
cite any precedent
from Blackstone
to Cook saying that
a commission is
property when it has been signed
and sealed, but not delivered?
No.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): I'm still--
KATHLEEN SULLIVAN
(LEVI LINCOLN):
There is no such authority.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
It sounds like a
good song, though.
[LAUGHTER]
KATHLEEN SULLIVAN (LEVI
LINCOLN): Exactly, Your Honor.
And in fact, in the words of
the great poet, Steven Wonder--
[LAUGHTER]
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
That's the one I had in mind.
Yeah.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Signed, sealed,
delivered, I'm yours.
But Mr. Marbury, signed, sealed,
and not delivered, not yours.
So Your Honor, in truth,
you could decide this case
and never write a
great opinion at all
by simply saying Marbury
has no common law
or equitable right
to his commission
because it wasn't
delivered, which
is an essential and irreducible
requirement for a property
right here.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
I don't understand your argument
about political question.
When your party
became in control
of both the executive branch
and the legislative branch,
the first thing it did was
change the Circuit Courts,
abolish them.
The next thing it did, maybe
in the same act actually,
is made us all go out and
ride on the circuits, which
we do not like, by the way.
Now, is that a political
question also not for us
to consider?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, Your Honor, the
Constitution authorizes
the Congress to do that.
The only thing the
Constitution creates,
as my learned
friend said, is you.
It does not-- it's
up to Congress
to create the inferior courts.
So Congress can create
and Congress can abolish.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
And your view is, also,
that we have a very
limited original jurisdiction.
KATHLEEN SULLIVAN (LEVI
LINCOLN): I do, Your Honor.
And let's turn to that
now, because if you
do reach the constitutional
question-- and as I said,
it's an easy case for you to
rule for my client, Secretary
Madison.
Let's look at the Constitution,
at Article III Section 2,
and see there,
again, what it says.
It extends the
original jurisdiction
of the United
States Supreme Court
to cases affecting ambassadors,
other public ministers
and consuls, and those in which
the state shall be a party.
The last time I looked--
PATRICIA MILLETT: What's a
public minister and consul?
KATHLEEN SULLIVAN (LEVI
LINCOLN): It's not Mr. Marbury.
It's--
PATRICIA MILLETT: He says he is.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, no, he doesn't.
He didn't make
that argument here.
Public ministers and
consuls is a term
of art under the Law of
Nations for those who
represent governments abroad.
It is not a term for any petty
officer in the United States.
PATRICIA MILLETT: You want
us to look at foreign law?
[LAUGHTER]
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your honor, it's a list.
It's a--
PATRICIA MILLETT: Is that
a yes, in interpreting
our Constitution?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, if it's
useful to my side, yes.
[LAUGHTER]
So let me just go back to
the nature of this list.
It's an enumerated list.
And expressio unius
exclusio alterius est, or--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
More foreign words, yeah.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Just Latin is a useful foreign
language for this purpose.
Or you might have
said that since it
lists three in the
category, expressio
tribus exclusio alteria est--
but the point is--
PATRICIA MILLETT: I don't think
that's how they pronounce it.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
But the point is, Your
Honor, that sometimes
the expression of
an affirmative list
is also something that
negatives other objects,
or it says that that was the
list and it was exclusive.
Now, don't take it from me.
Take it from my client.
He wrote the Constitution.
And he knew that
when you make a list
and you enumerate a
certain set of cases
in which original
jurisdiction extends,
it excludes other cases.
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): So now we're back--
JOSEPH GREENWAY: So it
might be your client--
are we to not have any notion of
constitutional interpretation?
It's just, look at the
beautiful words as he wrote them
and that's it?
KATHLEEN SULLIVAN (LEVI
LINCOLN): No, Your Honor.
There are lots more reasons
why you should interpret
this list as exclusive.
The Constitution was a
grant of limited power.
If it weren't a grant of limited
power to the federal government
in which the words
of the Constitution
had exclusive meaning--
they weren't open-ended.
As my learned friend
suggests, they're
just open-ended suggestions.
That's not what they are.
They're a grant of
power, limited power,
to a federal government.
How else do you think my client
and John Jay and Alexander
Hamilton could have possibly
convinced the states
to ratify the Constitution?
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, did the first
Congress, which
was held under the
Constitution and consisted
of many of the framers of the
Constitution, not know this?
Shouldn't we give some
credit for understanding
of the contemporaneous
understanding
of the Constitution
to the first Congress?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
And I'll suggest, I've given
you two escape hatches here.
And I'd be happy to give
you a third to avoid
the constitutional question.
You could hold it--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
You can dance, my goodness.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
I've already given
you, you could
hold it a political question.
I've already said
to you, there's
no common law right because the
commission wasn't delivered.
And third, you could interpret
the statute, giving way
to the framers' generation
who wrote the statute,
and just interpret
the statute to avoid
the constitutional question,
hold that it granted the power
to grant writs of
mandamus apposite
to an otherwise existing
grant of original
or appellate jurisdiction.
But there is no case to
which the mandamus power
is legitimately apposite here.
This certainly isn't an appeal.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Yet again, varying
from the stipulation
that was filed with this
court as to the understanding
of both parties about the
meaning of the statute.
But that's all right, because--
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, Your Honor, you
asked the question,
I was just trying to adapt.
If you wanted to avoid the
constitutional question
and ascribe a constitutional
intention to the legislature,
then you could just say
the writ of mandamus
here should be
construed as required
to be apposite to an otherwise
existing grant of jurisdiction.
Absent such jurisdiction here,
the case must be dismissed.
But don't do that,
because it will deprive
you of a wonderful
opportunity to write
a great constitutional opinion.
And when you write it, I think
what we've established so far
is that the Constitution, to
take my learned friend's word,
trumps the statute.
The Constitution says
original jurisdiction does not
extend to all cases in
equity like this one,
it extends only
to cases that you
don't have before
you-- ambassadors,
consuls in the sense of foreign
representatives, and states.
And if that's so,
the real question is,
do you, as the
court, have the power
to pronounce that
the act of Congress
in purporting to extend
this unconstitutional
original jurisdiction is void?
PATRICIA MILLETT: Well, at
the framing, or at the time,
my understanding
is there was talk
about having a Council of
Revision that would consist of,
I think, a mix of executive
and judicial officials,
that they would be the last
word on constitutionality.
And that was rejected.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Rejected, Your Honor.
PATRICIA MILLETT:
And so under what
theory could it be
that by rejecting
that, they wanted no
elected officials involved
in this decision
and it would just
rest in the hands of a small
number of unelected members
of the judicial branch?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, I agree with you
that the Constitution contains
no provision for this awesome
power of judicial review
and that there was
time in the framing
when other bodies, like
the Council of Revision,
were considered and rejected.
But Madison should
still win the case.
And that is because--
and you should still
invalidate the law--
and that is because
of the nature of the
written Constitution here.
You should look not
just to the text,
but to the nature of the
written Constitution.
PATRICIA MILLETT: You mean like
some living Constitution thing?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Just the one you have right now.
And I don't want to look to
the future or its evolution.
I want to look to what
this nation did when
they wrote it and ratified it.
PATRICIA MILLETT: And when
they wrote and ratified it,
there are parts of the
Constitution where--
that have protections, right?
The Executive can veto.
The Executive can
refuse to enforce a law
that it deems unconstitutional.
Certainly, the Legislative
branch does a lot of--
they're supposed to do
a lot of back and forth
before they come to
some agreement on an act
to make sure it's
constitutional.
Those are built into
the Constitution.
Where's our role in
the Constitution?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, your role
is to exercise reason,
precisely because you lack
the power of sword or purse.
And your role, as
a co-equal branch,
is to make sure that you stay
true to the Constitution,
and that you, when the other
branches have deviated,
step in to set the
record straight.
Now, you swear--
PATRICIA MILLETT:
On what basis can we
trust that the people
of the United States
will pay any attention
to our reasoning
at all, especially if
we use Latin phrases?
[LAUGHTER]
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, I want
to speak to this idea
that there's anything
undemocratic or unaccountable
if you enforce the Constitution.
With respect, that
is just not the case.
You are speaking
for the people who
engaged in a great exertion,
not lightly to be had,
when they wrote and
ratified the Constitution.
And when they wrote and
ratified the Constitution,
the people said
that future members
of the executive and
legislative branches
will be merely temporary
transitory caretakers
of trust and agency that
they repose in them.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So just to be clear, with
all those beautiful words,
you're saying we should
be able to strike down
violations of the Constitution.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Including ones that
President Jefferson supports.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
Yes.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): So--
and including the ones that
the Republican Congress just
passed with respect,
for example, why is it
that we didn't sit last year?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Well, Your Honor,
again, it's constitutional
for Congress to control the--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): But
if we think it's
unconstitutional--
KATHLEEN SULLIVAN (LEVI
LINCOLN): Then you should act,
Your Honor.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
--then we should strike it down.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
I actually don't
think you'll need
to strike down any acts
of Congress for about 60
more years.
But if you had to,
if you found one
that was truly constitutional,
you do have this power.
And I want to say again
why it's not undemocratic.
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): Pause on one thing.
You think the Sedition Act was
unconstitutional, don't you?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Well, Your Honor,
yes, our administration
does believe that.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Under the First
Amendment, right?
KATHLEEN SULLIVAN (LEVI
LINCOLN): We do, Your Honor.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So we should have been
able to strike that down.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
Congress shall make
no law abridging
the freedom of speech.
And yes, we do believe
that's unconstitutional.
But the point I'm making
there, Your Honor,
is we're not arguing here
that this court should
take upon itself
the exclusive power
to interpret the Constitution.
We're not suggesting that
you are a Council of Revision
supreme above the other.
PATRICIA MILLETT:
But here's what
I'm worried about, is there's a
lot of constitutional arguments
that could be made.
For example, someone might
challenge the rules, even
of this court, that
don't let women
practice before it as a
violation of the due process
clause.
And what if we were
to do something
so crazy as to say that women
could be lawyers and expect
the public to follow?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, Your Honor, I do think
that one great salutary effect
of His Honor's acquaintance
with President Adams
was his acquaintance
with Mrs. Adams,
Abigail Adams, who said,
remember the ladies.
And I'm certainly grateful that
you remembered all the ladies
permitted to speak today.
But I want to say that when
you do strike something down,
you must have
constitutional basis for it.
And since the due process
clause of the Fifth Amendment
has not yet been interpreted
to extend equal protections--
PATRICIA MILLETT: Well, whose
job is it to decide whether--
KATHLEEN SULLIVAN
(LEVI LINCOLN): Yours.
PATRICIA MILLETT: OK, so--
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yours, Your Honor.
Let me just go back to the
point I wanted to make.
I agree with the justice that
all the branches of government
are bound by the Constitution.
You swear an oath, so do they.
But nothing in my
argument suggests
that the other branches
would be forbidden
from making their own
constitutional judgments.
What if, in the future--
what if, in the future, we
didn't just vulcanize iron,
but we tempered steel,
and we made munitions
in great factories,
and a war was at stake,
and the president
seized the steel mills?
Could it be possible
that this court would not
have the power to stop
the President from so
unconstitutional an action?
PATRICIA MILLETT: You think
we should intervene in war?
We're supposed to do that, too?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, if it's an
unconstitutional action
and the President's
polls are very low,
then it would be appropriate
for you to enter into that.
JOSEPH GREENWAY: So what is
the constraint on our power?
How should we view
that, because it
seems by what you're
suggesting that we can exercise
our power in any
way that we deem
is consonant with
the Constitution?
KATHLEEN SULLIVAN (LEVI
LINCOLN): No, Your Honor.
Not any way.
What you do is you interpret the
text and purpose and structure
of the Constitution--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Using those Latin words
you just used before.
So imagine that a president
of the United States,
say, wanted to purchase
the Louisiana Territory.
There's nothing in
the Constitution
that gives the president
of the United States
the authority to do that.
Are you saying--
and this could be
very helpful for us to know--
that we can strike down the
President's action in buying
the Louisiana Territory?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
If a president were to do
that without constitutional
authority, and if my client
were no longer serving
at the pleasure of that
president at that time,
then it would be fine.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): OK.
[LAUGHTER]
KATHLEEN SULLIVAN (LEVI
LINCOLN): Your Honor--
PATRICIA MILLETT: But
we've got to have remedies.
So we just say, give it back?
I mean, what kind of
remedies do we have here?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, what you count
on when you pronounce
what the Constitution
means is the fact
that the other branches
have also sworn an oath
to uphold the Constitution.
They owe a line of allegiance
to the people, just as you do.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Do you think President Adams
was acting consistently
with the Constitution?
KATHLEEN SULLIVAN (LEVI
LINCOLN): When he--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, when he had
Jeffersonian-- hate to get back
to the Sedition Act.
But you're assuming
that all presidents
will be like your president.
There may be presidents
who are not like that.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, that would be a
wonderful thing, Your Honor.
But what I am suggesting is,
yes, what's sauce for the goose
is sauce for the gander.
I'm arguing that you
should strike down
this act of Congress
if it's interpreted
to extend to require Marbury's
commission to be delivered.
And if you set that
precedent, then you
may strike down the
actions of a president
of my party, just as much
of, with respect, sir, yours.
PATRICIA MILLETT: What
about of the states?
Do we also have
the same authority
over actions of the states?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
Imagine that there were
some day in the future when
we were to fight a civil
war and the people were
to adopt an amendment
declaring the right of equality
for all citizens, regardless
of race and a governor
were to stand
astride a schoolhouse
and bar the entrance
of African-American
schoolchildren.
It would be your
duty to announce
that the supreme
law of the land is
one that guards their equality.
Yes, it would.
PATRICIA MILLETT:
And would we have
to rely on the sword
of the Executive branch
to enforce that?
Are we still dependent
upon the other branches
to make sure that our wise
ruling is actually carried out?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, you are,
Your Honor.
And that is why the
genius of the Constitution
places constitutional
responsibility--
PATRICIA MILLETT: How
can be that be, though?
The whole reason that
the Article III itself
did not create inferior courts
was a concern by the states
that courts would be
created that would be
superior to their court system.
And so I don't
understand on what--
it seems to me
you're just redoing
the entire constitutional
balance with your argument.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, you asked
where does this power
of judicial review come from.
It comes from the state
constitutions, in part.
We have a tradition
going back a century
in our nation of
courts striking down
actions that exceed the power
of the delegated political
branches, even
within the states.
PATRICIA MILLETT: So are we
adopting the same approach
that the states have
used historically?
What is your view on what this
judicial review looks like?
Is there a deference?
Are we to look at this just
from our own perspective?
How do we do this when we've
got two other branches who,
as you say, have taken an oath
to the very same constitution?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
You listen with care
and modesty and doubt.
You listen with skepticism.
And you take into account the
views of the other branches.
And it's not something
to be done lightly.
That's why I gave
you escape hatches,
like deciding that the
commission didn't really belong
to Marbury in the first place.
PATRICIA MILLETT: Can we
have like a three-part test
or something that
could give us--
[LAUGHTER_]
--that we could easily apply.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
You should strike down
an act of Congress
where it is clear to you,
based on the text, that it
is an unconstitutional
action [INAUDIBLE]..
PATRICIA MILLETT: Does clear
mean unanimous decision
of the court?
KATHLEEN SULLIVAN (LEVI
LINCOLN): No, Your Honor.
Obviously, there
will be differences.
And differences are part
of democratic debate.
But, Your Honor, when an
action is unconstitutional,
whether it's undertaken by the
federal government or the state
governments in the future,
you are the only branch
who can ultimately decide
what the Constitution is
in a way that isn't infected
by short-term politics.
Article III gives
you life tenure.
And they can't
reduce your salary.
I recognize it's not
very high to begin with.
But the reason why you're given
that special protection from
the political
process is that you,
unlike the short-term political
actors in our system, have--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Does that mean President
Jefferson is only
going to take two terms?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Your Honor--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
I don't believe that's in
the Constitution, is it?
KATHLEEN SULLIVAN (LEVI
LINCOLN): It's not yet,
Your Honor.
It's coming.
JOSEPH GREENWAY:
It sounds like what
you're suggesting is that
we should think of ourselves
as the protector of freedom.
We're going to be here for life.
We're hoping it's a long life.
And that we actually know
better about the application
of the law and the Constitution.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
I do believe that, Your Honor,
not because you're superior--
JOSEPH GREENWAY: Is
this being recorded?
Is that something in the future?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Not because you're
a superior branch.
You're a coequal branch.
But you are the
one branch that is
protected from the slings
and arrows and vicissitudes
of political life.
PATRICIA MILLETT: No,
but if we have final--
there's nothing coequal
about final say.
That's not coequal.
We have the final
word is not coequal.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, you have no other
power of sword or purse.
You are the weakest branch.
And if you don't
agree with me today,
you'll always be
the weakest branch.
PATRICIA MILLETT: Not if
we have the final word.
If we have the
final word to veto
the judgment of the
representatives of the people
in Congress and the presidency,
we are the most dangerous
branch, are we not?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Not at all, Your Honor.
PATRICIA MILLETT: And
we're unremovable.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, I have no
doubt that in the future
you will become the
envy of the world.
And judges in foreign
countries will
say that they envy your
ability to enter decrees--
PATRICIA MILLETT:
Not at this salary.
Not at this salary.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
But the reason I think
that is so, Your Honor,
is you will exercise this
power of judicial review
wisely and judiciously.
The other branches have many
powers to try to restrain you.
If they don't, they can
try to pack the court.
They can try to reduce--
PATRICIA MILLETT: Well, you
told me at the beginning,
or perhaps you were unwilling
to answer the question,
will you follow our order?
You've just given us
a very bold argument
about why it is so
important that we exercise
our independence, that we
declare unconstitutional things
unconstitutional, and where
they're not unconstitutional,
we enforce them.
So if we-- I'll go back to
the question I began with--
if we are to issue the order
of the writ of mandamus,
will your client obey it?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, I would have to
consult my client on that.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
We'll take that as a no.
PATRICIA MILLETT: No,
but your very hesitance
is exactly the problem.
It shows that
there's no commitment
on the other branches to adhere
to our judgments, doesn't it?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Well, Your Honor--
PATRICIA MILLETT: It shouldn't
be an issue under your theory.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, there's no
constitutional basis
for you to issue that order.
And I think for the president
to obey an order of a court that
has no authority to issue it
would get you off to a very
bad start in our nation.
JOSEPH GREENWAY: I'm confused.
You just said we had all these
powers, all this authority.
I thought it was
a straightforward
question from my colleague on
the bench, if we so ordered.
I suppose you're going to
say that there's some sort
of attorney-client privilege.
Has that come about yet?
But what would your advice--
based on your argument
today, your advice
would have to be must follow
the order of the Supreme Court.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, Your Honor, if
you issue an order that
is itself unconstitutional--
let's take a step--
PATRICIA MILLETT: Who
decide-- we've said
our order's constitutional.
And you said we
get the last word.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, in the
future, there may
be a president who says,
if the president says it,
that means it's constitutional.
PATRICIA MILLETT: Really?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Unfortunately.
JOSEPH GREENWAY: May I quote
you to say that's wrong?
KATHLEEN SULLIVAN
(LEVI LINCOLN): Yes.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So we're a coequal
branch and we will
decide constitutional questions,
unless President Jefferson
thinks of the
Constitution differently
and refuses to follow us.
That's the theory we're
talking about here.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Well, Your Honor,
let's go back here.
We're talking about a common
law right to property here.
This is not a
constitutional case.
It's a case about a commission
that hasn't been delivered.
PATRICIA MILLETT:
Why does that make
a difference under your theory?
You want us to
dispose of this case
through a ruling of
constitutionality,
but you only want us
to make those rulings
when they go one way.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, what
we ask you to do
is to come to the correct view
of what the Constitution means.
It couldn't be
clearer in this case.
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): We understand, yeah.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
It couldn't be
clearer in this case.
When the Supreme
Court errs, then there
should be political dialogue.
The president has
a bully pulpit.
The president can talk about
whether certain decisions
are wrong.
The president can try
to speak to the people.
The president can--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Will there be a Twitter storm
if we rule against your client?
[LAUGHTER]
KATHLEEN SULLIVAN (LEVI
LINCOLN): Your Honor,
let me put it this way.
I want very much to promise you
that we would obey your order,
because I believe the fate
of the nation rests upon it.
But if you issue that order, you
will be getting this court off
to a very bad start,
because you will
be arrogating unconstitutional
authority to yourselves.
Nothing could be more
dangerous than for you
to take upon yourself
authority the Constitution
doesn't give you.
So save for another
day your clashes
with the other branches.
All you need to
do to decide today
is that your branch,
exercising your oath
to adhere to the
Constitution, that you
will not arrogate power to
yourself that the Constitution
denies you.
So what I'm asking
for you to do today--
PATRICIA MILLETT: I
thought I heard you
earlier with the
good for the goose
good for the gander thing.
It can't be that we
can only exercise
this constitutional power to
rule in favor of the executive
and not against.
You would agree that won't work.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Absolutely, Your Honor.
I think you should
rule as you see fit.
I think there is only
one way to come out here.
The Constitution
forbids the extension
of original jurisdiction
beyond ambassadors, consuls,
and states.
Marbury is not an ambassador,
consul, or a state.
Case closed.
You should not issue this order.
And when you do that, you're not
preventing the other branches
from having a dialogue
with you in the future.
You're not preventing
the other branches
from disagreeing with
you in the future
and coming up with their
own interpretation.
And you don't control the
outcome of that clash,
because you don't control
the sword or purse.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): So instead
of originalism, you would
call this new principle
constitutional
avoidance, is that right?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Well, I think
constitutional avoidance--
you don't seem to want to avoid
the constitutional question
here.
You seem likely to write
a very important opinion.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, you said we should
rest it on the common law,
we should decide
on property rights.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Well, Your Honor,
I'm just doing my
job as a lawyer
to give you every possible
way for my client to win.
But if you do reach the
constitutional question,
then let me suggest
to you that you're
engaging in an exercise
of judicial modesty
today that will give you great
judicial power in the future.
Judicial modesty today,
judicial power in the future.
And the fate of
our nation depends
upon you stepping up and taking
your role as a coequal branch
of government.
JANE KELLY: And does that
include the inferior courts,
as well?
Or is it just us?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
The inferior courts,
as well, Your Honor.
Because Article III, of course,
extends the judicial power.
It is a power.
It's not-- it is a power, and
that when Congress extends that
power towards the
other branches--
PATRICIA MILLETT:
Wait, are you saying
like one trial judge somewhere
in this large country
could issue an
order that enjoins
a law for the entire nation?
KATHLEEN SULLIVAN (LEVI
LINCOLN): Yes, Your Honor.
That is true.
PATRICIA MILLETT: Where do you
get that in the Constitution?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, the
judicial power extends
to all cases or controversies.
And Article VI makes
the Constitution
the supreme law of the land.
Article VI Supremacy Clause
says the Constitution
and the laws of
the United States
are the supreme law of the land.
It lists the Constitution first.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
This seems an awful bold
argument for Jeffersonian
Republicans to be making.
KATHLEEN SULLIVAN (LEVI
LINCOLN): Your Honor, I--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Have you checked
with the President
about whether this is
an acceptable argument?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Your Honor, the President is
very concerned that Marbury not
get this commission.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
So his philosophical
views are, shall we say,
depend on the situation.
Is that what you're saying?
KATHLEEN SULLIVAN
(LEVI LINCOLN):
Not at all, Your Honor.
And to close, the
President fully
backs the position we
argue to you today.
Marbury must not be
delivered his commission,
because to do so would
arrogate to this court
unconstitutional power today.
It is consistent with
Jeffersonian philosophy
that you not arrogate
to yourself today
power you should not have
under the Constitution.
And if you follow that
exercise of modesty today,
you will be the envy of
the world in the future.
You will have a power
of judicial review
that is the envy of the world.
So rule with Madison.
Thank you.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): All right,
thank you.
[APPLAUSE]
LAURENCE TRIBE (CHARLES
LEE): You know, I
was listening to
my learned friend,
and I heard not a
word, not one word,
as to why President
Jefferson and Secretary
Madison would be doing
anything wrong by simply
delivering the commission.
There's no suggestion
if you order
the President and the Secretary
to do that, they can say,
well, it's a nice order,
but I don't need it.
I never intended to
violate his rights.
Here, have your damn commission.
Very simple.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
We don't swear in
this court, I'm sorry.
LAURENCE TRIBE (CHARLES
LEE): I'm sorry.
I thought that we had gotten
a little beyond that in 1802,
but here we are.
Here we are.
No, it seems to me that
the idea of mounting
on the high horse of
constitutional principle
to deny this little
piece of property
to a meager job applicant
is really quite bizarre.
My colleague
imagined that someday
in the future, a president
might seize a steel mill
without due process of law.
And surely, the courts
would be able to stop him.
Is a steel mill a more important
piece of property than a job?
What about the steel workers?
What about the judges?
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): Were you surprised--
JOSEPH GREENWAY: What
about the consti--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): No, no.
JOSEPH GREENWAY: What about the
right that the president has
to appoint a person to the--
LAURENCE TRIBE
(CHARLES LEE): I was
getting to that, Your Honor.
I was getting to that.
This is not a matter
of appointment.
If there were a
request to this court
to tell President Adams or
President Jefferson whom
to appoint as a judge, that
would be a political question,
a question of discretion.
But once someone has been
appointed, signed, sealed,
delivered, Stevie Wonder to
the contrary notwithstanding,
it's clear under the
common law of property
that that thing is his.
Deeds to land don't have to
be delivered in order for you
to get specific performance.
PATRICIA MILLETT: Is there an
overriding federal common law
that we should
apply, or do we look
to the common law of the state?
LAURENCE TRIBE (CHARLES
LEE): Well, I don't think--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): Not yet.
LAURENCE TRIBE (CHARLES LEE):
--that this court should leap
into the chasm--
JOSEPH GREENWAY: This
could be the time.
LAURENCE TRIBE (CHARLES
LEE): --of federal common law
quite yet.
It's a very--
I'm sure you will find
it an intellectually
stimulating exercise.
But this case, as my friend
says, is really quite simple.
It's not a political question.
A political question
is one that requires
discretion and judgment,
like whom to appoint.
But delivering a piece of paper
that would have been delivered
but for your brother's--
PATRICIA MILLETT: What
if we do what you--
I'm sorry.
JANE KELLY: It's
a new president.
It's a new day.
It's a new political issue.
LAURENCE TRIBE (CHARLES
LEE): It's a new day,
but you can't undo the past.
The moving finger writes--
JANE KELLY: We can't
go in the past?
LAURENCE TRIBE (CHARLES LEE):
Well, the moving finger writes,
and having writ, moves on.
Nor all your piety
nor wit shall lure
it back to cancel half a line.
Nor all your tears--
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Is that from the
Tribe treatise, also?
[LAUGHTER]
LAURENCE TRIBE (CHARLES
LEE): No, it's not.
Actually, it's from
the Middle East.
And I think this
court would do well
to look at foreign
law from time to time.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Are you surprised to learn
that both the attorney
general for Adams and the
attorney general for Jefferson
think that we have the
power to strike down
statutes as unconstitutional?
LAURENCE TRIBE (CHARLES
LEE): It is quite remarkable,
Your Honor.
But when people have
learned from one another
and spend years
working together,
they often come to a common view
of a straightforward question.
PATRICIA MILLETT:
What if we issue
your writ and the
government doesn't comply,
the President doesn't comply?
What happens then?
LAURENCE TRIBE
(CHARLES LEE): Well,
that would be very unfortunate.
He might be impeached
for defying the courts.
Impeachment is in the air.
One of you, I think, has been
threatened with impeachment.
I think defying the
rule of law might well
be an impeachable offense.
And it would be the law.
As this court, I
think, ought to say
the very essence
of civil liberties
is that a right
deserves a remedy.
And my learned
colleague's suggestion
that there is no basis in the
Constitution-- thank you--
that there is no basis
in the Constitution
for what we're asking,
that's not right.
What about the due process
clause of the Fifth Amendment?
It says that property
shall not be taken
without due process of law.
What kind of due process is it?
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, I think, she, in the words
of the recently departed Lord
Hugh Hefner, reads
the Constitution only
for the articles.
[LAUGHTER]
LAURENCE TRIBE (CHARLES
LEE): Well, I think--
[APPLAUSE]
Good one, Your Honor.
The articles, though,
would not be the law
but for the Bill of Rights.
They had to add that to get
ratification by the states.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): I remember.
I think-- are we out of time?
LAURENCE TRIBE (CHARLES
LEE): I think we may be.
Your Honor, I think
what's crucial
is that the President be
brought within the law.
And you could do that
in any number of ways.
And we're sure that you will
be wise in your judgement.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL): All right.
We will take a few
moments to deliberate.
We will be back very soon.
Don't leave.
[APPLAUSE]
SPEAKER 2: All rise.
MERRICK GARLAND (CHIEF JUSTICE
MARSHALL): You may be seated.
I will begin by
delivering my opinion
in William Marbury versus
James Madison, 1 Cranch
137, February, 1803.
Mr. Madison has,
perhaps foolishly,
stipulated before
his lawyer got here,
that Section 13 of
the Judiciary Act
authorizes this court to
issue a writ of mandamus
to the Secretary of State.
He maintains, however, that
this court has no power
to issue such a
mandamus, it being
an exercise of original
jurisdiction not warranted
by the Constitution.
We reject this
crabbed contention
that Congress lacks power to
give original jurisdiction
to the Supreme Court in cases
other than those expressly
described in the Constitution.
But, as an advisory
opinion, even
if we were to accept
Mr. Madison's argument,
we would nevertheless
follow Congress's statute.
We reject the novel premise
that a statute repugnant
to the court's notion of the
Constitution cannot become
the law of the land.
That is too extravagant
to be maintained.
The judicial department
does not have the power
to disregard laws enacted by
the legislative department,
for it is emphatically
the province and duty
of the legislative
department, not
the unelected
judicial department,
to say what the law is.
After all, this court was not
in the room where it happened.
[LAUGHTER]
Neither at the Constitutional
Convention or in Congress Hall.
We therefore issue the--
I, at least, would therefore
issue the writ of mandamus
and direct Mr. Madison
to deliver to Mr. Marbury
his commission as
Justice of the Peace.
And if they resist, we will
not hesitate to remand them
to their beloved France.
You may be seated.
We're not done yet, actually.
KATHLEEN SULLIVAN
(LEVI LINCOLN):
I wondered if it was too late
to raise the recusal issue.
[LAUGHTER]
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, I think we'll
regard that as waiver
rather than forfeiture,
at this point.
Now, I have tried
the best I could
to establish a policy of
having the Chief Justice be
the only one writing opinions.
But I have independent
minded colleagues.
And that's not the
result. So each of us
will seriatim give our views.
JOSEPH GREENWAY:
Despite the fact
that there is no
apparent resemblance,
I have learned during
deliberations that I too am
a cousin of the Chief Justice.
[LAUGHTER]
And as such, I have learned that
I am bound by his decisions.
So I, too, join in Chief
Justice Marshall's opinion.
So I, too, would order
that the writ be issued
and that the commission
be delivered.
PATRICIA MILLETT: Leave it
to the women to get it right.
[LAUGHTER AND APPLAUSE]
JOSEPH GREENWAY: Don't start.
JANE KELLY: Oh, we're
just getting going.
PATRICIA MILLETT: This
case is a testament
to the need for the development
of a body of judicial ethics.
It is contrary to any sense of
morality for the Chief Justice
to have even-- and
now his cousin--
to have even sat on the case.
The text of the
Constitution is plain as
to the division
between our original
and appellate jurisdiction.
We are to enforce
the Constitution.
We don't need judges
legislating from a bench
and coming up with
crazy, novel ideas
about expanding our power.
And if a constitution
is to mean anything,
it must be the ultimate and last
word that governs the people.
And we, as judges or
justices, are the only party,
power under the
Constitution, the branch
under the Constitution,
empowered to make
those very difficult and tough
judgments of great allegiance
to the law.
The Constitution is the ultimate
law, and to give it effect.
And so to enforce the
principles supposed
to be essential to all
written constitutions
that a law repugnant to
the Constitution is void,
and that courts, as well
as other departments,
are bound by that instrument--
and I will add that I think
this power of the Supreme
Court to declare laws
unconstitutional may become
very important in the future
if, perhaps, someone named,
oh, Ruth Bader Ginsburg,
were to argue that women should
have equal rights under the law
and so that we should
be able to practice
law and sit on this court.
Because we're going to need
that judgment for law professors
to figure out which of
these two-two opinions
is the law of the land.
JANE KELLY: I concur
in my sister's opinion
and, not surprisingly, dissent
from the majority opinion.
PATRICIA MILLETT:
It's not a majority.
It's two-two.
JANE KELLY: Ooh.
I'm so used to that.
[LAUGHTER]
If the Constitution
has any meaning,
it is a law superior to
the acts of Congress.
And an act of
Congress cannot exceed
what the Constitution allows for
the legislation to do, to act.
And we cannot allow one branch
of the government to decide
for itself whether or not
it can exceed those limited
powers within the Constitution.
Our advocates have reminded
us how weak we are.
We are the weak, nerdy branch.
And yet, this is where
we do have the power.
We are independent.
Like it or not, we're here
for the rest of our lives.
And the votes of the people
do not affect our opinion.
We are the ones that should
be making this decision.
And I believe that
we do have the power
to declare an act of
Congress unconstitutional.
MERRICK GARLAND (CHIEF
JUSTICE MARSHALL):
Well, we will now leave it to a
law school, which we understand
is being contemplated in
Cambridge, Massachusetts,
to decide what the
effect of a decision
of an equally
divided court ruling
on the original jurisdiction
of the Supreme Court,
there being no lower court,
what the consequence will be.
We leave that to history.
Court is adjourned.
[APPLAUSE]
