The Supreme Court decided Marbury v. Madison by a unanimous 4-0 vote on February 24, 1803.1Justia U.S. Supreme Court Center. Marbury v. Madison Chief Justice John Marshall wrote the opinion and was joined in full by Justices Samuel Chase, William Paterson, and Bushrod Washington. No justice dissented, and no one wrote separately. Two of the Court’s six seated justices did not participate.
Which Justices Voted
The Court had six seats in 1803. Four heard the case and lined up together: Marshall, Chase, Paterson, and Washington.2National Constitution Center. Marbury v. Madison Marshall’s opinion was the only one filed. The other three signed onto it without qualification.
Justices William Cushing and Alfred Moore took no part.2National Constitution Center. Marbury v. Madison The historical record is not consistent about why. Some accounts describe recusal; others simply note the non-participation without giving a reason. What is settled is that the Judiciary Act of 1789 set the Court’s quorum at four, so the participating justices had full authority to issue a binding decision.
Why the Vote Was 4-0 and Not 6-0
Because Cushing and Moore did not participate, the ceiling on the vote was four. Their absence is often reported as a health issue in older accounts, but the primary evidence is thin, and the more careful sources leave the reason unstated. Treat the “4-0” figure as the accurate one: four justices sat, four voted, and all four agreed.
Marshall’s Conflict of Interest
One reason the vote count draws attention is that the Chief Justice arguably should not have been part of it. In the final weeks of the Adams administration, John Marshall was serving simultaneously as Chief Justice and as Secretary of State. The Secretary of State was the officer responsible for delivering signed and sealed commissions, including William Marbury’s. Several commissions were left undelivered on a State Department desk during the transition; Marshall later attributed the lapse to the “extreme hurry of the time.” When Jefferson’s Secretary of State, James Madison, took over, he refused to deliver them, and Marbury sued.
The official who failed to deliver the commission was now one of the four judges deciding whether it had to be delivered. In 1803 there were no formal recusal rules governing the Supreme Court, and Marshall did not step aside. He wrote the opinion.
What the Four Justices Agreed On
Marshall organized the opinion around three questions, and the four-justice majority signed onto all of them.
First, did Marbury have a right to the commission? Yes. The appointment became complete when President Adams signed the commission and the Great Seal was affixed. Delivery was a formality.1Justia U.S. Supreme Court Center. Marbury v. Madison
Second, did the law provide a remedy? Yes. Delivering the commission was a ministerial duty, not a matter of executive discretion, and the courts could address the violation.1Justia U.S. Supreme Court Center. Marbury v. Madison
Third, could the Supreme Court issue a writ of mandamus directly to Madison? No. Section 13 of the Judiciary Act of 1789 purported to authorize the Court to issue such writs to federal officers,3Justia. Power to Issue Writs: The Act of 1789 but Article III of the Constitution defines the Court’s original jurisdiction narrowly, covering only cases involving ambassadors, other public ministers and consuls, and cases in which a state is a party.4Congress.gov. U.S. Constitution – Article III Congress could not enlarge that list by statute.5Constitution Annotated. Supreme Court Original Jurisdiction
Faced with a statute that conflicted with the Constitution, the four justices held that the Constitution controls and the conflicting statute is void.6Constitution Annotated. Marbury v. Madison and Judicial Review “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. The Court struck down the relevant portion of Section 13, the first time it had ever invalidated a federal statute. Marbury lost, because he had filed in a court that lacked jurisdiction to help him.
Why a Unanimous Vote Mattered
Judicial review, the power the four justices claimed for the Court, is not spelled out in the Constitution. A split ruling asserting that power would have been easier to attack as one faction’s overreach. A 4-0 opinion, with no concurrences softening the reasoning and no dissent contesting it, presented the doctrine as the settled view of the entire participating Court.6Constitution Annotated. Marbury v. Madison and Judicial Review
The political setting made unanimity more valuable still. President Jefferson opposed the idea that the judiciary could serve as the final word on the Constitution’s meaning, calling it “a very dangerous doctrine” that would place the country “under the despotism of an oligarchy.” Congress, controlled by Jefferson’s allies, had already repealed the Judiciary Act of 1801 and canceled the Supreme Court’s 1802 term.8Federal Judicial Center. The Midnight Judges
The Vote’s Long Shadow
The Court did not strike down another federal statute until Dred Scott v. Sandford in 1857.7National Archives. Dred Scott v. Sandford Roughly 200 federal laws or provisions have been invalidated since the mid-twentieth century. Every one of those decisions rests on the authority claimed by four justices in a single unanimous opinion on February 24, 1803. Marbury himself never received his commission.