Tribute: Justice Scalia and Marbury v. Madison

Lee Liberman Otis is Senior Vice President of the Federalist Society and an Adjunct Professor at Georgetown University Law Center. She served as a law clerk to Justice Scalia in October Term 1986. The views expressed here are her own.

I first met Justice Antonin Scalia when I was a law student at the University of Chicago, where he was a law professor.  The first course I took from him was Constitutional Law I, which at Chicago was a second-year course focused exclusively on the structural provisions of the Constitution.

My sharpest memory of the class is how he explained Marbury v. Madison.  At least since the second half of the twentieth century, law professors have taught Marbury as the case where Chief Justice John Marshall, through a clever jiu jitsu move, avoided a confrontation with the president by “discovering” (read “inventing”) a power of the Supreme Court to strike down an act of Congress.  This power, the professoriate claimed, was nowhere to be found in the text of the Constitution.  It was the first act of the Court “shaping” the Constitution to fit our needs.  They went on to read Marshall’s famous statement that “it is emphatically the province and duty of the Court to say what the law is” as a successful power grab by the Chief Justice that turned the Supreme Court into the final arbiter of constitutional questions.

Then-Professor Scalia read this statement rather differently.  He viewed it as being primarily not about judicial power, but about judicial obligation (or as Professor Philip Hamburger would later say, judicial duty).  He understood Marshall’s point to be not that the Court is some kind of special guardian of the Constitution but something far more straightforward:  that the Constitution is a law, and therefore, like other laws, it supplies the rule of decision to the Court in a case properly before the Court.  In the Scalia reading of Marbury, there is no special “power of judicial review,” just the question whether the Constitution is a law that the Supreme Court is required to follow in a case before it.

This reading of Marbury, I later realized, was integral to how Justice Scalia saw his job – not as the shaper of the Constitution, but as its servant.   And while, to be sure, there is something to be said for both ways of viewing the case, it turns out that there is a lot more to be said for Justice Scalia’s than most of the professoriate had been inclined to think.