Paul Greenberg

Granted, it was not the most popular decision ever rendered by a chief justice of the United States. Its immediate result was particularly unpopular with those who over the years had shared his own political loyalties and ideological tendencies.

The chief justice drafted his opinion carefully, methodically, logically, upholding one argument after another against the very conclusion he would finally reach. When he did reach it, many were surprised, quite a few were shocked. He was accused of betraying not just his party's interests but the very logic he'd followed right up to his last change of course.

I'm talking, of course, about John Marshall's decision in Marbury v. Madison, the decision that enshrined the principle of judicial review in American constitutional law. That principle isn't explicitly mentioned in the Constitution even though it could be readily inferred; Marbury v. Madison spelled it out definitively.

After reciting every argument why William Marbury, his fellow Federalist, should receive his commission as a justice of the peace in the District of Columbia, the chief justice refused to order the new secretary of state to deliver it. Even though John Marshall himself had sought, unsuccessfully, to have it delivered when he was acting as John Adams' secretary of state in the waning hours of the Adams administration.

Indeed, like Mr. Marbury, the chief justice had been one of the many "midnight appointments" that the country's last Federalist president had made in an attempt to keep the judiciary from being shaped by the incoming administration of Thomas Jefferson.

But the chief justice withstood the partisan temptation to order Mr. Marbury's commission delivered. He had a larger object in mind. He rejected his fellow Federalist's plea on the ground that it had been brought to the wrong court. He reasoned that, according to the Constitution, the Supreme Court heard only appeals in cases like Mr. Marbury's -- that it was not a court of original jurisdiction. And the Judiciary Act that had given his court such jurisdiction was in conflict with the Constitution and therefore void. It was the first time an Act of Congress had been declared unconstitutional. It would not be the last.

The chief justice had sacrificed Mr. Marbury's commission but secured the authority of his court and the American judiciary to overrule legislative acts. His historic decision made the judiciary the final arbiter of American law -- an immense power indeed.

Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.