John Adams, a New Englander from Massachusetts and Thomas Jefferson, a Southerner from Virginia were revolutionary period colleagues and friends during the founding of the Republic even though they could not have been more different in personalities, temperament, and politics. It was perhaps inevitable they would have a falling out. Jefferson was the Vice-President of the United States when Adams was President from 1797-1801 on the basis of Jefferson receiving the second most electoral votes even though they belong to different political parties. When Jefferson challenged Adams for the presidency and won in 1801 not only was the rupture in their friendship complete, they became bitter enemies.

During the last days of Adams’s one presidential term the majority Federalist Party in congress passed legislation greatly expanding the number of federal judges including justices-of-the-peace. Adams proceeded to name people of his political persuasion to these positions. A few weeks before Adams had named his Secretary of State and 2nd cousin of Thomas Jefferson, Virginian John Marshall as Chief Justice of the then six-man US Supreme Court (the court was increased to the present number of nine in 1869). Marshall thus became the 4th Chief Justice of the Supreme Court, replacing President Washington appointed Oliver Ellsworth (John Jay of course was the 1st).

Adams was literally still writing out the names of the people he appointed as judges on his last day in office. As Secretary of State, John Marshall had the task to deliver these written commissions to each individual. Because he simply did not have time to deliver all of them he gave half to his brother James to deliver. His brother, apparently being less conscientious or less industrious, did not deliver all of them. When the new administration came in President Jefferson told his Secretary of State, James Madison, not to deliver the remaining 17 commissions.

Ten months later William Marbury who had been appointed Justice of the Peace in the District of Columbia took his case to the Supreme Court. The Jefferson dominated congress passed a law canceling the next session of the Supreme Court. When the court finally convened 14 months later the first case it took up was Marbury v. Madison. Marshall, being an astute lawyer, realized this was an important case for the nascent court to consider. He knew if he refused to take the case the court would look weak, but if he took it and ruled in favor of Marbury he also knew that the Jefferson administration would simply ignore the court’s order in which case the court would likewise appear weak and ineffectual. So what to do. Marshall formulated a strategy to strengthen the court at a time when it was very much the weakest and least respected part of government relative to the legislative and executive branches. His solution defined the genius of John Marshall and set the Supreme Court on the path to becoming an equal to the legislative and executive branches.

In the court’s long and detailed decision Marshall scolded the Jefferson administration by writing that Marbury had been treated very badly by having his commission illegally withheld and he should be given it now. It looked like Marbury had won and the Jefferson administration had lost. But wait; there was more to the decision. Marshall also ruled that the court did not have jurisdiction in this case - then came the key to the ingenuity of the decision. Marshall wrote that the law expanding the judiciary was unconstitutional thus establishing the precedent of judicial review by the Supreme Court. Article I section 7 of the constitution clearly gave the president power to veto legislation and the congress power to override a presidential veto. It was John Marshall who gave the Supreme Court power to invalidate laws passed by congress and the president by implicit, not explicit, language in the constitution. Not article III which authorized the Supreme Court nor in any other place in the constitution is the power of judicial review mentioned.

When the decision came down, some of the Jeffersonians thought they had won. Thomas Jefferson however quickly realized that in fact he had not won, but was caught on the horns of a dilemma. He did not want it to appear he had been dragooned by the court into giving Marbury his commission and besides he did not want more Federalists on the bench with lifetime appointments, but by not granting the commission he was implicitly conceding the court the power of judicial review. He did his best by seemingly ignoring the ruling; however a precedent had been set which would be built upon in future court decisions. It is instructive though that John Marshall, who the longest serving (34 years) Chief Justice of the US Supreme Court, never again declared a law passed by congress and the president unconstitutional. He had extricated the court from a difficult position in Marbury v. Madison and he did not want to press his luck.