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University of Pennsylvania Law School




On the 200th anniversary of Whittington and approaching the 200th anniversary of Marbury, this article revisits these two decisions and challenges legal scholars' assumptions that they were such strong precedents for judicial review.5 When one takes into account the broader contexts, both decisions were in fact judicial capitulations to aggressive legislatures and executives. The Maryland General Court asserted its judicial supremacy only in dicta, and the court failed to enforce judicial supremacy when it was legally justified. This article picks apart the court's reasoning step by step, using Whittington to illuminate Marbury and Marbury to illuminate Whittington. This reinterpretation offers new historical evidence from contemporaneous discussions by politicians, judges, and newspaper editorials to demonstrate that the Maryland court departed from the Federalists', and some Republicans', understanding of the legal issues.

In addition to revising our understanding of Whittington itself, the most important point of this historical inquiry is that it questions Marbury as the basis for activist judicial review. The interpretation of Whittington offered in this article helps clarify that Marbuy was truly a survival strategy of deference. The Maryland General Court, similar to the Marshall Court, essentially used the threat of judicial review as a fig leaf, while the nakedness of their acquiescence was apparent to all observers. The judges in both courts opted to live to fight another day, leaving behind dicta or sidestepping holdings that could be unearthed by future judges once the American judiciary solidified its status. This paper concludes that the development of judicial review ought to be understood in terms of institutional history, rather than culled from the language of these decisions. Marshall laid the foundations for judicial power less in Marbury, and more in leading the Court to its revered "golden age" from 1812 to 1825, which established the Court's power on the national stage.6 The Marshall Court never again struck down an act of Congress after 1803, but this later period of the Marshall Court garnered enough prestige to be passed on to future Courts. Then, in the second half of the nineteenth century, the Court directly challenged Congress essentially the first time. Marshall's strategy in Marbury allowed him to survive to achieve this stature later, but Marbury did not get the Court to that doctrinal end itself.

The Rehnquist Court, in an unprecedented wave of judicial activism, has struck down acts of Congress in thirty-three cases since 1995.' One sixth of the Supreme Court's decisions invalidating federal statutes in the nation's history have come down in the last seven years. During a time of such unprecedented judicial activism, reflecting about Marbury and the history of judicial review is all the more important. Because Marbury embodies judicial caution as much as judicial power (if not more so), the current Court should not rely on Marbury as precedent to support its activism. 9 Judges and scholars ought to be looking elsewhere (perhaps the late nineteenth and early twentieth century) for the foundation of judicial review of Congress, and should adopt a more incrementalist approach to the development of judicial power."' This article suggests that the story about Marbury that Americans have woven together is, more or less, a founding myth of judicial review." Of course, Marbury and Whittington were pivotal cases, but their key contribution was less their doctrine, and more their success in withstanding the Jeffersonian challenge to judicial independence. If judges continue to base judicial review upon Marbury, then this examination of Whittington and Marbury together suggests that these judges ought to consider a much more deferential and cautious approach to overturning legislation. The Rehnquist Court would also be wise to heed the cautious approach of Whittington, in which Chief Judge Chase urged courts to intervene only when the importance of the rights in question outweighs the undemocratic problem of judicial review.

This new research also helps to answer some persistent historical questions about Marbury: Why didn't the media report on Marbury's declaration of judicial review powers? Why didn't the Federalist plaintiffs continue their suit in lower courts with original jurisdiction, which the Court's decision seemed to have encouraged? Did the Justices pass the buck to the lower courts in Marbury, knowing that those courts were even less likely to offer a remedy? How did Whittington affect the subsequent events in the fall of 1802 and in 1803, and if the Maryland court had ruled in Whittington's favor, how might this history have changed?

Part I offers the background of the Maryland Republicans' attack on the state's Federalist judges, when Maryland emerged a battleground state shifting to Republican control. This Part traces the close parallels of Marbury and Whittington, and demonstrates that the Maryland repeal of a judiciary act and Whittington v. Polk drew the attention of the nation's newspapers, Congressmen, and most importantly, the Supreme Court Justices themselves. Part II presents the Maryland General Court's decision in Whittington, and Part III uses historical research to challenge the court's reasoning and then offers three legally more persuasive rulings that would have sided with Whittington and the Federalists.

Part IV considers the effect of Whittington on the various actors in the judicial struggle: Thomas Jefferson and Gabriel Duvall, the lone Republican judge on the Maryland General Court; Judge Jeremiah Townley Chase of the Maryland General Court and Justice Samuel Chase, Chief Justice Marshall and the other justices in their turn towards accommodation; and the key midnight appointees, including Maryland's William Marbury. Whittington helps explain why the Federalist Justices of the Peace and the Midnight Judges did not press on with their legal claims in lower federal or in state court after Marbury gave these litigants an apparent green light to do so. For those who perceive Marbury as a sign of strength by the Federalist judiciary, this surrender by the Federalist plaintiffs is a nagging question. The Maryland General Court's capitulation in Whittington sent a signal that the lower courts would dodge these challenges, so these Federalist appointees may have abandoned the fight. This signal from the Maryland General Court helps explain why the media's reaction to Marbury generally ignored its use of judicial review and focused more on its rejection of the Federalists' claims. 13 This Part also speculates about how a different decision by the Maryland Court may have dramatically changed the course of events leading to Marbury. In short, the Maryland court might have escalated the conflict, pushing the Supreme Court on a more confrontational path with the Jeffersonians. Instead, Whittington provided a model to the U.S. Supreme Court of strong dicta cloaking deferential holdings.

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