We Are Living in 1803 Now

The Supreme Court should be better than this

We have been here before.

More than 220 years ago, as the nation was finding its footing, the U.S. Supreme Court came down with a decision that set the course of American legal history. It involved a man named William Marbury, a Maryland businessman who had been appointed a justice of the peace by the outgoing president, John Adams, but blocked from taking office by the incoming Thomas Jefferson. Marbury sued to claim the position he believed was rightfully his.

This put the top court in a tight spot. Still to come was any definitive notion of what the justices could and could not do. Interpret the Constitution? Strike down statutes passed by Congress? Order the president to comply with the law? Each of these questions posed risks, no matter the answer offered. Yet, Chief Justice John Marshall found a way to navigate the risks with the touch of a true politician.

For a unanimous court, in Marbury v. Madison, he wrote in 1803 that Marbury had a right to the job and deserved an order that gave it to him. The thing of it was, if the court issued the order, there was a good chance Jefferson would ignore it. So Marshall declared that, yes, the court had a duty to “say what the law is” – establishing the concept of judicial review – yet under the Constitution, the statute that allowed the court to order Marbury hired was illegal. The upshot: Marbury did not become a justice of the peace, but the court established its power over the law – while, in essence, ducking a confrontation with the administration that would have damaged its credibility. That last point was especially important at a time when the court, already struggling to overcome a perception as weak, could have blundered its way into irrelevance.

Fast forward to now. Having built on its decision in Marbury’s case, the Supreme Court can swagger about, striking down limits on money in politics and women’s right to abortion and universities’ ability to give minorities a break. And yet, when it comes to the executive branch, the court acts as if it were back in an America, Marbury’s America, where it cannot afford to confront the president because he might get mad and call it names or even ignore its rulings. As said president might put it, “Sad.”

Examples of its pitiable behavior come nearly every day. On April 4, the justices put on hold a judge’s order that blocked the Trump administration from freezing payments for training teachers in poor and rural areas. The training, claimed the administration, would promote DEI – diversity, equity, and inclusion. The court said the states challenging the freeze had probably sued in the wrong court – a technical point that allowed the justices to dodge the substantive issues – and the hold would continue during appeals. The opinion was unsigned, a copout that in 1822 Jefferson called “certainly convenient for the lazy, the modest and the incompetent.”

On April 8, the justices paused another judge’s order, this one requiring the rehiring of probationary federal workers fired by the administration. Again, the court based its decision on a technicality: The challengers to the firings didn’t have a legal right – so-called standing – to sue. And again, the opinion was unsigned

Then there was the decision just a day before in the case involving the deportation of Venezuelan immigrants to a notorious El Salvadoran prison. Back on March 15, Washington, D.C. federal Judge James Boasberg had ordered the government to turn around two flights carrying ostensible Venezuelan gang members to El Salvador. The administration essentially ignored the order. Boasberg then temporarily blocked the administration from spiriting anyone else out of the country before they could challenge their detention. The administration appealed, and the case ended up before the Supreme Court.

On April 7, the justices lifted Boasberg’s order, again on the wrong-court point: The Venezuelans, who were being held in Texas, should have sued there rather than in Washington. The court mumbled as a sort of aside that the migrants surely did deserve some “due process” – a chance to prove, among other things, that they were not gang members.

Justice Sonia Sotomayor would have none of it. In dissent, she pointed out that the administration had given Boasberg the back of its hand. “The government’s conduct in this litigation poses an extraordinary threat to the rule of law,” she wrote. “That a majority of this court now rewards the government for its behavior…is indefensible. We, as a nation and a court of law, should be better than this.”

That the court could be better than this received a wan nod last Thursday, when it ruled that the administration should, as a lower court had ordered, “effectuate” the return of a man who had been whisked away to El Salvador for as best anyone could tell no reason at all. But the justices said the lower court first had to “clarify its directive.” Clarify its directive? Now that’s telling ‘em.

Long ago, in the Marbury case, a callow Supreme Court had reason to be wary of a showdown with the president, and it played a weak hand well. In the Venezuelan case, this Supreme Court has every reason to stand up to a bully in the White House. It’s the case that prompted Trump to call for Boasberg’s impeachment. It’s the case that led to his Truth Social rant about “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama.” It’s the case in which the president is fast approaching raw defiance of the court and the rule of law.

Better than this? Even after 220 years, maybe not.