Would Marbury v. Madison Be Decided the Same Way Today?

Chief Justice Marshall established the principle of judicial review, holding that the Supreme Court has the power to review acts of Congress and declare them unconstitutional. While finding that Marbury had a right to his commission and that the law afforded him a remedy, Marshall concluded that the provision of the Judiciary Act of 1789 granting the Court original jurisdiction to issue writs of mandamus was unconstitutional because it expanded the Court's original jurisdiction beyond what Article III permits.

Judicial review has become the foundational principle of American constitutional law, so deeply embedded in the legal system that its legitimacy is rarely questioned in practice, even as it continues to generate theoretical debate. Every level of the American judiciary exercises the power to evaluate the constitutionality of legislative and executive action, and this power has been exported to constitutional systems around the world.

The scope and intensity of judicial review have expanded enormously since 1803. The modern Court reviews not only federal legislation but also state laws, executive orders, administrative regulations, and the actions of virtually every governmental entity. The development of tiered scrutiny analysis—rational basis, intermediate scrutiny, and strict scrutiny—has given the Court sophisticated tools for calibrating the intensity of its review based on the nature of the right at stake and the type of governmental classification employed.

Contemporary debates about judicial review focus less on whether the power exists than on how it should be exercised. Originalists and living constitutionalists disagree about the interpretive methodology courts should employ, while institutionalists debate the proper scope of judicial deference to the political branches. The countermajoritarian difficulty identified by Alexander Bickel remains the central theoretical challenge: how to reconcile an unelected judiciary's power to override democratic decisions with democratic self-governance.

Marbury v. Madison would almost certainly be decided the same way today, as judicial review has become a structural feature of the American constitutional order that no serious legal actor proposes to eliminate. The principle is so deeply embedded in constitutional practice that it functions as something close to a settled constitutional rule, regardless of one's interpretive methodology.

The specific reasoning of Marshall's opinion—that a written constitution implies judicial enforceability and that courts must choose the Constitution over conflicting statutes—has been accepted by virtually every school of constitutional thought. Originalists point to evidence that the Framers expected judicial review, while living constitutionalists view it as essential to the protection of individual rights against majoritarian overreach. Even scholars who question the historical basis for judicial review, such as Larry Kramer, do not typically advocate its abolition but rather argue for a more restrained exercise of the power.

The modern Court would likely reach the same result on the specific jurisdictional question as well. The distinction between original and appellate jurisdiction in Article III has been maintained, and the Court has continued to police the boundaries of its own jurisdiction. The principle that Congress cannot expand the Court's original jurisdiction beyond its constitutional limits remains good law.

The durability of Marbury reflects its unique status as a decision that empowered the judiciary while also demonstrating judicial restraint—Marshall declined to issue the writ and avoided a direct confrontation with the Jefferson administration. This combination of asserting power while exercising it modestly has given Marbury a cross-ideological appeal that few other decisions enjoy.

The scholarly debate about Marbury has evolved from questioning the legitimacy of judicial review to examining its optimal scope and exercise. Larry Kramer's 'popular constitutionalism' argues that the Framers envisioned a system in which the people, not the courts, would serve as the ultimate interpreters of the Constitution, and that judicial supremacy—the idea that the Court's interpretation is final and binding—is a later development not inherent in the original design. Mark Tushnet has similarly argued for 'taking the Constitution away from the courts,' contending that robust judicial review weakens democratic self-governance.

Defenders of strong judicial review, including Erwin Chemerinsky, counter that the countermajoritarian nature of the judiciary is a feature rather than a bug, necessary to protect minority rights and enforce constitutional limits on government power. The debate has practical implications for questions of judicial deference, the political question doctrine, and the scope of standing—all areas where the Court determines the boundaries of its own authority to review governmental action.

• Cooper v. Aaron (1958)
• City of Boerne v. Flores (1997)
• Bush v. Gore (2000)
• National Federation of Independent Business v. Sebelius (2012)
• Department of Commerce v. New York (2019)