Marbury v. Madison‘s Significance Endures Two Centuries Later

The landmark case Marbury v. Madison–establishing the principle of judicial review–was decided two hundred six years ago today. Cliff Sloan, a partner at Skadden, Arps and the former publisher of Slate.com, has authored a new book on Marbury,  The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court with David McKean. The authors will speak at the Newseum on February 26 in a panel moderated by Justice John Paul Stevens and wrote on the case in Newsweek. Mr. Sloan will also appear on The Colbert Report television show tonight. The book will be published March 2.

Mr. Sloan spoke with this blog about his book project and the “most important” case.

SB: As Laurence Tribe says in his glowing review of the book, “Forests have been felled writing about that decision as a legal landmark.”  What do you think is most overlooked or misunderstood element of Marbury?

CS: Most people don’t realize that the Marbury case is a fascinating story full of colorful characters, surprising twists, and unexpected drama.  The messy, human nature of the context makes the outcome all the more impressive.  To take one example, many people don’t realize that John Marshall and Thomas Jefferson — perhaps the two most important players in the conflict, the new President and the new Chief Justice — were cousins, and hated each other.

SB: How do you turn technical legal concepts–the writ of mandamus, original jurisdiction, judicial appointments–into material that can be understood and appreciated by a general nonfiction reader?
Or is the book aimed at legal professionals and scholars who already have a grasp of the underlying provisions?

CS: The book is aimed at the general public, and we hope that it will be enjoyed and appreciated by lawyers as well.  The trick for us was to try to make sure that we cut through the technicalities of terms like mandamus and got to the essence of the story.  In some ways, we were restoring the story to its original character — the case was covered closely in the popular press of the time, which was highly opinionated.

SB: It seems appropriate to discuss the conflict over John Adams’ appointment of “Midnight judges” when much has been written recently about former President George Bush’s impact on the federal appeals courts. Do you address the politicization of the federal circuit courts in the book?

CS: The judiciary was a major flash point of controversy between the new Jefferson Administration and the Federalists.  The Jeffersonians had swept the Presidency and Congress, and they saw the courts as the last bastion of the Federalists, particularly with Adams’ frenzied midnight appointments.  An important element of Marbury’s greatness as a decision was that the Supreme Court did not simply act as a predictable political player, as many had expected it to do.  Marbury, the frustrated Federalist office-seeker, ended up losing the case.

SB: How and where was the research for The Great Decision done?

CS: We were lucky because the most important places for our research were in the area — wonderful institutions like the Library of Congress, the National Archives, the Virginia, Maryland, and DC Historical Societies, and the Alexandria Public Library.  There’s a real joy to doing original research and combing through historical documents. For example, when I looked through the original diary of Gouverneur Morris, a prominent Federalist Senator in the early 1800’s, and read his conversations and reactions to events both important and trivial, I felt an incredible immediacy and connection.  It was as though he was standing there at the Library of Congress chatting and gossiping about Jefferson, Adams, and Marshall.

SB: What made you decide to write a book after stepping down as publisher of Slate and returning to a law firm practice? Any advice for others looking to span the gap between writing briefs and writing nonfiction prose?

CS: I actually began the book and worked on it extensively while I was still Publisher of Slate.  We started working on it in early 2005.  It was fascinating for me to jump from twenty-first century digital media issues during my day job to early eighteenth century law and politics.  My only advice would be to follow your interests.  We found Marbury enormously interesting from many angles, and that sustained us and made it fun to work on the book.