William Baude (University of Chicago Law School) has posted Marbury Now (Liberties, Volume 6, Issue 2, pp. 7–26 (Winter 2026)) on SSRN. Here is the abstract:
Consider a showdown between an institutionalist Chief Justice of the United States and an ambitious and opportunistic President of the United States—a showdown in which the Chief Justice wishes to both lay bare the president’s violations of law and norms, and to bolster the Court’s power and authority. And yet the president is a canny one, a powerful one, an intransigent one, who will not meekly accept what even the Chief Justice may dictate. No, I am not talking about President Donald Trump or the Roberts Court—though I will return to them—but about the Founding era. This showdown took place between Chief Justice John Marshall, the last hope of the defeated Federalist Party, and President Thomas Jefferson, the leader of a new political coalition that had defeated them. Their showdown, more than two centuries ago, produced the Supreme Court’s decision in Marbury v. Madison. Marbury is part of the canon of constitutional law, known for establishing the principle of judicial review. Under canonical Marbury, federal courts are the guardians of the Constitution: they sit implacably to decide whether the actions of Congress or the president are constitutional. This is what Marbury stands for. This is constitutional bedrock. But like so many canonical texts, the Marbury of legend is just a tale. Marbury’s real lessons are more complicated, less triumphant, and yet even more urgently relevant. Marbury did render an important defense of judicial review under the Constitution. But Marbury also contains the seeds of executive power, and a logic that leads to the Supreme Court’s recent decision in Trump v. CASA, in which the Court ruled that federal courts could not issue “universal” injunctions, and thus that executive officials could disregard judicial interpretations at least some of the time. Marbury also demonstrates—through sleight of hand and indirection, not plain statement—the ways in which practical judicial power may depend on political calculation.
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