How Marbury v. Madison Made the Supreme Court an “Equal Partner”

Brian Stryker Weinstein is a New York attorney who delivers counsel in a variety of litigation cases. Experienced in diverse aspects of litigation, Brian Stryker Weinstein has a personal interest in landmark cases that have helped define the US Supreme Court’s role.

One such case, Marbury v. Madison (1803), reflected the tumultuous politics of the time. Before Thomas Jefferson came into office, the outgoing Federalist “lame-duck” Congress of John Adams created an additional 16 circuit judgeships, as well as other new judgeships of unspecified number. This was part of an effort to block Jefferson’s Republican Party from enacting its own legislative agenda.

A total of 42 justices were authorized by Adams in the weeks leading up Jefferson’s inauguration. However, William Marbury, one of the outgoing president’s last appointed justices, did not have his formal appointment delivered in time. His judgeship was subsequently withheld by new Secretary of State James Madison. This set up a lawsuit by Marbury against Madison for failing to deliver his commission, as the documents had already been signed and sealed.

Chief Justice John Marshall ultimately decided that Marbury did possess the right to the commission, as a political decision had been made by the outgoing president before his term expired. He further characterized Madison’s refusal to deliver that commission (under Jefferson’s orders) as a “plain violation of that right.” In presenting a solution, Marshall greatly expanded the Supreme Court’s powers, as he gave it the right to overturn Congressional acts. He placed the Supreme Court central in a system of checks and balances and gave it power to declare acts by other branches of government unconstitutional. It was at this moment that the Supreme Court emerged as an equal partner within the executive and legislative branches.

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The Supreme Court’s Tradition of a “Judicial Handshake”

 Based in New York, Brian Stryker Weinstein maintains a law practice focused on high-profile litigation cases. An area of personal knowledge for Brian Stryker Weinstein is the US Supreme Court and its history and traditions.

Dating back to the late 19th century and Chief Justice Melville W. Fuller, one persistent tradition in the courtroom is the “judicial handshake.” This involves shaking hands with each of the other eight justices when assembling to sit on the bench each day and when about to start private conferences at which decisions are discussed. This practice was instituted as a daily reminder of “harmony of purpose,” even in cases where the justices’ individual interpretations of the law differed.

Allowing for differences of opinion is a central part of a well-functioning democracy and enshrined in the actual practices of the Supreme Court. For practical reasons, as the need to minimize social interactions took hold during the COVID-19 pandemic, justices temporarily paused this tradition in March 2020. However, the tradition has since been reinstated and continues to this day.