First Among Equals Read Online Free PDF

the High Court brimming with optimism. This was, after all, a Federalist bench from top to bottom. These were the appointees of Washington and Adams. The commission was surely his.
    There was a huge problem, however, one unanticipated by Marbury's argument. The issue had to do with the Supreme Court's authority to hear the case, what lawyers and judges call “jurisdiction.” Jurisdiction is a fundamental issue for courts. Judges routinely ask: Do we have power—i.e., jurisdiction—to hear this lawsuit? Are the litigants in the right court? Does this plaintiff have “standing” (some legally recognizable injury) to mount the legal challenge in question? Is there a statute, passed in accordance with the Constitution, conferring power on the courts to resolve the particular case?
    In particular, federal courts (including the Supreme Court) worry about their authority in a federal system: “Counsel, what right does your client have to be here?” The basic point is this: In our system of government, courts are limited in their authority. Although within their sphere of authority they are powerful indeed, courts can do only what the law creating them authorizes. To go beyond that power is to behave lawlessly.
    Occasionally, judges will be insufficiently attentive to what they consider jurisdictional niceties. An episode during my service in the 1980s as a judge on the U.S. Court of Appeals in Washington, D.C., illustrates the point. One of the giants of the district court in Washington at the time was Gerhard Gesell, son of the renowned Yale child psychologist and a distinguished lawyer in his own right at Washington's prestigious Covington & Burling. Before his appointment to the bench, Gesell had been one of the nation's premier antitrust advocates. He was smart and shrewd. Each year, he would sit by designation for several days as a guest judge on the court of appeals in Washington. On one such occasion, as we were chatting in the judges’ robing room just behind the courtroom, Gesell was complaining about recent opinions from our court tightening up the rules of standing, saying, “Let's get on with these cases, get to the merits, instead of wrestling with all this technical stuff.” Gesell was a bit testy on the point. He seldom hesitated to speak his mind, but he seemed especially agitated over this trend toward “technical” decisions. I was amused, but listened politely. I liked Gerry a lot, and respected his opinions. The presiding judge that morning was Robert Bork. Always quick, Judge Bork reminded the venerable district judge that these recent opinions didn't simply reflect some hypertechnical approach: “Well, Gerry, it is constitutionally required, you know.” What Judge Bork was saying is this: Courts are limited, by Article III of the Constitution, to deciding actual cases and controversies. Gesell snorted. Here was the practical, common-sense district judge who wanted to move the cases along and get them decided, on the one hand, pitted against the principle, rooted in the idea of a limited judiciary, that judges can't decide anything and everything parties might choose to bring them.
    This was the problem that confronted Marbury. He had brought his case to the Supreme Court instead of some lower court because the Judiciary Act of 1789 told him he could. But this, Chief Justice Marshall concluded, was impermissible. The text of the Constitution itself—in Article III setting forth the judicial power and creating the Supreme Court—designated the specific categories of cases in which the Supreme Court enjoyed “original” (that is, firsthand) jurisdiction. What Marbury was seeking— mandamus—was not within those categories.
    Thus, the 1789 statute tried to expand what the Constitution itself established. The categories of original jurisdiction created by the Constitution were closed (barring, of course, a constitutional amendment). Congress could not depart from the text of Article III and