Whitaker’s Comments on Marbury v. Madison: Absurd or within the Mainstream?

Taylor Beckham, Associate Member, University of Cincinnati Law Review

Introduction

Since President Trump’s appointment of Matthew Whitaker as acting attorney general, political commentators have expressed grave concerns about Whitaker’s qualifications and political beliefs.[1] Among the most salient of those apprehensions involve Whitaker’s views on the role of the judicial branch, especially the Supreme Court. Various editorials have been written on Whitaker; some question his understanding of the judiciary, while others state that adherence to his positions could cause a constitutional crisis.[2] Specifically, many articles discuss Whitaker’s statements on the landmark Supreme Court case, Marbury v. Madison, and his opinions on judicial review.[3]

In 2014, Whitaker sought and failed to receive the Republican nomination for an Iowa Senate seat. During this campaign, he spoke with an Iowa blog, Caffeinated Thoughts. In the twenty-question interview, Whitaker was asked: “What’s the role of the courts and what is or what are some of the worst decisions in the Supreme Court’s history?”[4] Whitaker responded:

The courts are supposed to be the inferior branch of our three branches of government. We have unfortunately off loaded many of our tough public policy issues onto the court and they’ve decided hem [sic]. Unelected judges are deciding many of the issues of the day. There are so many (bad rulings). I would start with the idea of Marbury v. Madison [sic]. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.[5]

Interpretations of this quote range from the ridiculous to well-within mainstream thought. Whitaker could have been expanding on a long-established line of academic discourse on Marbury and judicial review. Other understandings of Whitaker’s comment are much more drastic, reading it to suggest the Supreme Court has no ability to check the executive or legislative branches. It is insufficient to simply assume the most inflammatory interpretation of Whitaker’s remarks is the correct understanding. A deeper dive into his statement’s possible meanings may be helpful in elucidating Whitaker’s views on the judicial branch.

This article is not intended to serve as a defense of Whitaker’s appointment as acting attorney general. Some of the views he has expressed are problematic and arguably inappropriate for a person in his role. Still, his statement in the pertinent blog post should be read as a whole, rather than parsed, as it has been by many media sources. His comments on Marbury, while inarticulately phrased, should not necessarily be considered radical in the existing scope of academic discussion.  This article explains why Whitaker’s statement may not be wholly unfounded or removed from conventional academic thought; this article also recognizes that Whitaker’s failure to clarify his comment will leave him vulnerable to criticism.

The Importance of Marbury v. Madison

Marbury inhabits a unique space in American jurisprudence. In the events preceding the case, President John Adams attempted to appoint a number of judges before the inauguration of president-elect Thomas Jefferson. Due to the rushed nature of the appointments, several judges were not effectively appointed by the required date, including William Marbury. Marbury brought suit against the Secretary of State to compel commission of his judgeship, claiming that section 13 of the Judiciary Act of 1789 gave the Supreme Court original jurisdiction over requests for mandamus.[6]

The Supreme Court, led by Chief Justice John Marshall, held that Marbury was owed his commission.[7] The Court also found, however, that its jurisdiction over the matter was invalid.[8] The Court held that section 13 of the Judiciary Act was unconstitutional and violated Article III of the Constitution by enlarging the judicial power. For this violation, the Court declared the relevant section of the Act void.[9] Marshall then justified the Court’s authority to declare acts of Congress and executive orders unconstitutional. In essence, Marshall used a political controversy to establish the power of judicial review, as this power was not explicitly granted by the Constitution.

Marbury holds a vital role in the interaction of the three branches of government. Judicial review affects our nation’s most important issues. When considering the significance of this decision, it is not surprising Whitaker’s suggestion of overturning Marbury has caused so much controversy. Indeed, overturning Marbury would have dramatic effects. Speculation about these effects has clouded the true meaning of Whitaker’s remarks. Whitaker could simply be expanding on a long-established line of academic discourse on Marbury and judicial review. Other understandings of Whitaker’s comment are much more drastic, reading it to suggest the Supreme Court has no ability to check the executive or legislative branches.

Contextualizing Whitaker’s Comments in the Debate on Judicial Review

Marbury v. Madison has never been immune from criticism.

Marbury has been the subject of scrutiny since it was decided, with strict and broad interpretations of its holding prevailing at different times. In the most straightforward argument for judicial review of the constitutionality of federal laws, Marshall directed attention to the text of Article III, which grants the Supreme Court jurisdiction over cases arising under the Constitution.[10] Marshall further elaborated on the importance of the United States’ written constitution. He argued that the Framers could not have intended the Court to allow laws of Congress to contradict and prevail over the Constitution. Therefore, it was essential the judicial branch be able to review laws passed by Congress and render them void for being unconstitutional.[11]

This is not, however, the only interpretation of Article III. Scholars have argued that the grant of jurisdiction to cases arising under the Constitution does not refer to the power to render unconstitutional laws void. Instead, it confers to the judiciary the power to determine if state laws contradict the Constitution, and to determine how to apply federal law to cases before the court.[12] Whitaker does not articulate this position in the much-discussed interview. Still, his references to the Supreme Court improperly being the final arbiter of the Constitution may fit well within an already-existing argument; proponents of this argument, while contradicting precedent, generally still believe the judiciary holds a significant role in our government.

Whitaker’s views on judicial review are not especially unusual, as theories on the power of the judiciary vary widely.

The power of the judiciary branch has been the subject of significant discussion, with academics and commentators advocating various viewpoints, such as judicial activism, judicial minimalism, and judicial originalism. Judicial activists argue the Supreme Court should use its knowledge of societal beliefs and opinion in interpret the constitutionality of cases accordingly.[13] Advocates for judicial minimalism, by contrast, believe the Supreme Court should avoid broad rulings and decide cases on an individual basis.[14] Judicial originalists maintain that the Supreme Court should utilize only the explicit meaning of the Constitution of the time of its ratification to decide the cases before it.[15]

Considered within the debate on the role of the Supreme Court, pieces of Whitaker’s statement are not controversial. Whitaker’s statement that the Supreme Court has been granted too broad of power in deciding policy issues is not a novel thought.[16] Even at the time of the country’s founding, judicial review was not an unquestioned power of the Supreme Court.[17]  Whitaker’s opinion is also not necessarily partisan, as both liberals and conservatives have espoused similar views, disparaging legislation from the bench.[18] Proponents of judicial activism who are familiar with existing debates are unlikely to be shocked by the argument that the Supreme Court has exercised too much authority over issues of public policy; resistance to judicial involvement on public policy has always been a part of the debate surrounding the judicial role. Politicians can avoid accountability for tough public policy issues by shifting focus to Supreme Court rulings. Indeed, politicians and governmental officials often use previous Supreme Court decisions to avoid taking a stance or admitting a plan to change a particular issue.[19] It is not uncommon for an official to describe a social issue as “settled law” rather than discussing the future of the particular policy.[20] Regardless of where a person’s belief falls on the spectrum of judicial review, Whitaker’s concerns on the judicial role in deciding policy are not new, or even uncommon, in the already existing debate.

Whitaker’s view of the judiciary as the “inferior” branch of government is problematic and indicates his lack of consistency.

The first sentence from Whitaker’s widely circulated interview states that the judiciary is intended to be the “inferior” branch of government.[21] While this sentence has received less attention than Whitaker’s comments on Marbury, it is arguably the more problematic portion of Whitaker’s statement. There is no constitutional basis to suggest the Framers intended the judiciary branch to be inferior to the other branches of government, particularly not in the explanation of the judiciary branch in Article III.[22] The Federalist Papers clarify that the three branches of government were meant to exist independently, but still retain the ability to check abuses of power by the other branches.[23] It is possible Whitaker was attempting to appeal to those who believe the Supreme Court has wrongfully assumed a role of supremacy over the other branches of government.[24]

Whitaker’s commitment to this declaration is also called into question given his answer to an earlier question in the Caffeinated Thoughts blog, where he was asked how law was created. He responded: “Obviously the courts have a role, although I don’t believe the courts should make law. I’ve talked about that many times before. Much like Chief Justice John Roberts says, the courts should call balls and strikes[.]”[25] This statement does not imply that courts are meant to be subordinate to the other branches of government. Instead, it falls in line with the view that the judicial branch is only meant to enforce the law and challenges judge-made law. Regardless of which of these views Whitaker truly meant to espouse, the contradictions within the same interview demonstrate a lack of carefulness that will invite criticism while he serves as acting attorney general.

Although there has not been significant discussion on this, Whitaker has left himself open to criticism from judicial originalists as well. Whitaker fails to clarify what he thinks would occur as a result of discarding Marbury. In Marbury, Marshall rejected interpretation of Article III where Congress could be allowed to contradict the written constitution.[26] If overturning Marbury included overturning this interpretation of Article III, Congress could be given significant opportunities to contradict the Constitution in lawmaking or to interpret the Constitution with flexibility. This view directly opposes beliefs espoused by advocates for Constitutional originalism. Therefore, Whitaker’s statement is prone to partisan criticisms from all sides, illustrating its problematic nature.

Conclusion

The reaction to Whitaker’s stance on judicial review may stem from the modern understanding of judicial activism and the Supreme Court. It is apparent that the Supreme Court has fundamentally altered the rights of the American people. The decisions made by the Supreme Court in the past fifty years have affected highly personal issues, such as the right to marriage, abortion, and healthcare.[27] People are naturally going to be protective of a vehicle for these rights. Yet the Supreme Court is fallible, and has made patently horrible decisions, regardless of political viewpoint—Whitaker’s statement may only raise the spectre of these issues and problematic cases.[28]

Regardless of his intentions or the true meaning of his 2014 interview, Whitaker was irresponsible by being so unclear in his statements about the judicial branch. As time passes since his appointment as acting attorney general, more and more articles are being written about his viewpoints, parsing his words and burying the original interview. While much of the criticism towards Whitaker has been fairly partisan in nature, the ambiguity of his statements has left him vulnerable to well-deserved scrutiny from all political parties. With the amount of current interest surrounding his role, this criticism is unlikely to end soon. 


[1] E.q. AnneMarimow, Maryland Challenges Legality of Whitaker’s Appointment as Acting U.S. Attorney General, Washington Post (Nov. 13, 2018), https://tinyurl.com/y97sywfv; Acting AG Matt Whitaker’s Qualifications Come Under Fire, San Diego Union Tribune (Nov. 9, 2018), https://www.sandiegouniontribune.com/opinion/letters-to-the-editor/sd-le-matt-whitaker-trump-attorney-general-utak-20181109-story.html; Rekha Basu, Matthew Whitaker’s Troubling Opinion: Judges Need a Biblical View, Des Moines Register (May 4, 2018), https://www.desmoinesregister.com/story/opinion/columnists/rekha-basu/2018/11/07/matt-whitakers-troubling-opinion-judges-need-biblical-view/1923393002/.

[2] E.q. Andrew Coan and Tony Massaro, Matthew Whitaker’s Supreme Court Positions are Incoherent, May Cause Constitutional Crisis, USA Today (Nov. 14, 2018), https://www.usatoday.com/story/opinion/2018/11/14/matthew-whitaker-acting-attorney-general-supreme-court-constitutional-crisis-column/1977742002/.

[3] E.q. Charlie Savage, Acting Attorney General Matthew G. Whitaker Once Criticized Supreme Court’s Power, The New York Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/us/politics/matthew-whitaker-courts-inferior.html; Alex Hubbard, Interim Attorney General Matthew Whitaker’s View on Marbury Decision is Baffling, Tennessean (Nov. 16, 2018),  https://www.tennessean.com/story/opinion/columnists/2018/11/16/matthew-whitaker-view-marbury-supreme-court-decision/2006821002/.

[4] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[5] Id.

[6] Erwin Chemerinsky, Constitutional Law: Principles and Policies §2.2.1 (5th ed. 2015).

[7] Marbury v. Madison, 5 U.S. 137, 168 (1803).

[8] Id. at 176.

[9] Id.

[10] USCS Const. Art. III, § 2, Cl 1.

[11] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178-179 (1803).

[12]Erwin Chemerinsky, Constitutional Law: Principles and Policies §2.2.1 (5th ed. 2015), citing David Currie, Federal Courts: Cases and Materials 27 (4th ed. 1990).

[13] Christopher Wolfe, From Judicial Activism to Constitutional interpretation: The Transformation of Judicial Review in America, The Heritage Foundation (March 3, 2006) https://www.heritage.org/the-constitution/report/constitutional-interpretation-judicial-activism-the-transformation-judicial.

[14] John Allison, Originalism v. Minimalism, Cato Institute (Nov. 2014) https://www.cato.org/policy-report/novemberdecember-2014/originalism-v-minimalism.

[15] Id.

[16] E.q. Jay Cost, The Senate and the  Supreme Court Have Been Granted Too Much Power, National Review (Sep. 17, 2018) https://www.nationalreview.com/2018/09/senate-supreme-court-granted-too-much-power/; Ryan McMaken, The Supreme Court is Much Too Powerful, Mises Wire (July 10, 2018) https://mises.org/wire/supreme-court-much-too-powerful; Kim Holmes, Has the Supreme Court Become too Powerful? Heritage Foundation (Feb. 25, 2016) https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-powerful.

[17] The Anti-Federalist Papers XI (Robert Yates) (Constitution Society).

[18] See generally, Cass Sunstein, One Case at a Time: Judicial Minimalism in the Supreme Court (1999); Justice Sandra Day O’Connor: Trends Toward Judicial Restraint, 42 Wash. & Lee L. Rev. 1185 (1985), https://scholarlycommons.law.wlu.edu/wlulr/vol42/iss4/5.

[19] Benjamin Siegel, GOP President-Elect Donald Trump Says Same-Sex Marriage is ‘Settled’ Law, ABC News (Nov. 13, 2016), https://abcnews.go.com/Politics/gop-president-elect-donald-trump-sex-marriage-settled/story?id=43513067.

[20] Nancy Northup, ‘Settled Law’ is not enough to protect Roe v. Wade, The Hill (Sep. 04, 2018),  https://thehill.com/opinion/judiciary/404934-settled-law-is-not-enough-to-protect-roe-v-wade.

[21] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[22] USCS Const. Art. III.

[23] The Federalist No. 51(James Madison)(New York Packet). But see Federalist No. 78 (Alexander Hamilton)(The Avalon Project, Yale Law School). (Hamilton argues the judiciary is the weakest branch and must take care to prevent being overrun by the other branches of government).

[24] See generally: Michael S. Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003). https://repository.law.umich.edu/mlr/vol101/iss8/7; Mel Topf, A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy (2011).

[25] Jacob Hall, Iowa U.S. Senate Candidate Profile: Q&A with Matt Whitaker, Caffeinated Thoughts (May 21, 2014), https://caffeinatedthoughts.com/2014/05/iowa-u-s-senate-candidate-profile-qa-matt-whitaker/.

[26] Marbury v. Madison, 5 U.S. 137, 178 (1803).

[27] See generally: Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 (1973); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S. Ct. 2566 (2012).

[28] Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138 (1896); Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193 (1944); United States v. Stanley, 109 U.S. 3, 3 S. Ct. 18 (1883).

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