The Marbury Mystery: Why Did William Marbury Sue In The Supreme Court?
Susan Low Bloch
Georgetown University Law Center
Constitutional Commentary, Vol. 18, No. 3
When, in 1801, William Marbury asked the Supreme Court to order Secretary of State James Madison to deliver his commission as justice of the peace, he inspired what must be regarded as one of the most important cases in the Court's history. But why did Marbury choose the Supreme Court? Was there a lower federal court that could have granted the writ? He could, I have learned, have brought his suit in the newly-created Circuit Court of the District of Columbia, instead of trying - unsuccessfully - to invoke the original jurisdiction of the United States Supreme Court. Did he know of this possibility? Would the Circuit Court have granted the requested writ of mandamus? As this essay will show, there is reason to believe that the answer to both these questions is "yes." That being the case, the intriguing, indeed, mysterious questions surrounding Marbury's choice of forum warrant further examination.
Specifically, this articles addresses the following questions: 1. Was there an alternative forum for the suit by Marbury and his colleagues?
2. Did Marbury and his colleagues know about this alternative forum?
3. Did this forum have the power to issue a writ of mandamus in this case?
4. Why did Marbury and his colleagues not go there?
5. What if this alternative court had granted the writ and ordered Madison to deliver the commissions?
6. Was the result reached in Marbury v. Madison contemplated, foreseen, or orchestrated by any of the participants in this drama?
Note: This is a description of the paper and not the actual abstract.Accepted Paper Series
Date posted: November 5, 2001
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