Reverse Marbury

Andrew Coan

Recent developments have again raised the possibility that the Trump administration will openly defy the federal judiciary. This could play out in a number of different ways. But one plausible scenario has been largely overlooked: Government defendants might simply ignore a district court order while refusing to appeal. This strategy—what I have called “the appellate void”—would amount to a kind of reverse Marbury v. Madison, challenging judicial authority while leaving the Supreme Court powerless to respond.

When William Marbury sought a writ of mandamus from the Supreme Court directing Secretary of State James Madison to deliver his commission, Chief Justice Marshall faced a dilemma. If the Court issued the writ, President Jefferson would almost certainly have ignored it, exposing the Court's weakness. Yet dismissing Marbury's suit would signal that executive officials could violate legal rights without any judicial remedy.

As every first-year law student learns, Marshall's solution was to explain why Marbury was entitled to his commission, while holding that the Supreme Court lacked jurisdiction to order its delivery. In this way, the Court established judicial review of congressional legislation while issuing no order for the Secretary of State to defy. All President Jefferson could do was fume from the sidelines.

The appellate void places the shoe on the other foot. Where Marshall leveraged limits on the Supreme Court's jurisdiction to avoid issuing an order the President would have ignored, a modern President exploiting the appellate void could leverage those same limitations to ignore a district court order and shield this defiance from Supreme Court review. If the administration refuses to appeal, there is no case or controversy for the Supreme Court to decide. And under Marbury's own jurisdictional holding, the Court is forbidden from issuing a writ of mandamus ordering the government to comply because that would be an exercise of original, rather than appellate, jurisdiction.

For a fuller explanation, you can read my new paper on the appellate void here.