The Supreme Court today can uphold or strike down legislation, actions and more as unconstitutional without its power being questioned. The specific ability of a court to review an act as constitutional or not is known as judicial review. Surprisingly, nowhere in the Constitution does it grant the Supreme Court the power to conduct judicial review. Instead, the ability arose after a decision made by Chief Justice John Marshall in 1803.

The presidential election of 1800 led to the rise of the Republicans under Thomas Jefferson over Federalist John Adams who had won in 1796. The election is sometimes named the “Revolution of 1800” due to having a different party for the country’s highest office for the first time since the ratification of the Constitution. Before Jefferson and his Republican Party could enter the office, Adams devised a plan to increase the size of the judiciary and appoint Federalist friendly judges to the posts. A set of 16 circuit judges and 42 justices of the peace were appointed less than 24 hours before handing over the presidency in what was termed as the “Midnight Judges”.

The appointments were all approved by the Senate but could only go into full effect if the commissions were delivered to the appointees. However, not all of them could be delivered in time. John Marshall, who continued to be acting Secretary of State while serving as Chief Justice, believed that the appointments could still go through without the commission as they were already approved. Under Jefferson, newly appointed Secretary of State James Madison was ordered to not deliver the leftover commissions, including one for William Marbury. Marbury was supposed to be appointed Justice of the Peace in Washington D.C. but was denied the commission by James Madison.

The refusal to deliver the commission led to a legal showdown between the Supreme Court and the Jefferson administration. William Marbury appealed to the Supreme Court directly using the writ of mandamus portion of the Judiciary Act of 1789 which allowed courts to compel officials to complete certain actions. In Marbury’s case, he asked the Supreme Court to compel Madison to deliver the commission. Chief Justice Marbury, who was a Federalist, wanted to make sure the Supreme Court would not be weakened by the decision but would also give some sort of victory to the Jeffersonian Republicans. As a result, Marbury did agree that the commission should have been delivered. However, Marshall added that the direct appeal to issue a writ of mandamus by the Supreme Court was unconstitutional as the types of cases that could be automatically be reviewed by the Supreme Court was already outlined in the Constitution. Therefore, the writ of mandamus as written in the Judiciary Act of 1789 was struck down. Even though the Jeffersonians did win the case, John Marshall was able to usher in a new strength of the Court with the power of judicial review where the Jeffersonian Republicans would be wary of future actions.