Court decisions. Number 759, earnest hernandez, petitioner vurz arizona. Number eight, rowe against wade. Quite often in many of our decisions are ones the court took they are quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who helped stick together because they believe theyre rule of law. Good evening and welcome to cspans new series, landmark cases. Tonight and for 11 weeks were going to be looking at 12 cases that affect the country and society. Tonight or case is marbury versus madison. It came about between two Founding Fathers who developed an imit inty. We have two gusts at the table to help us understand the story and importance of this case in our countrys history. Akhil reed amar is a Yale Law School professor. And also at the table, federal lit gator, cliff salone. The great six addison marshal and a battle for the Supreme Court. Gentlemen, to start were going to listen to the jeff justice about this case then well hear from you on why this case is significant lets watch. In his fame decision he wrote marbury versus madison, he basically said look, were a court, we have to decide cases. If in deciding the case we have to determine what the constitution means thats our job under the constitution. He regarded the constitution as law. Thats one way that our constitution is different from a lot of others. Many countries that have constitutions theyre really just political documents. If you have a dispute under the constitution its going to be resolved however a dispute is going to be resolved. Maybe in an election if youre lucky, maybe by a force of mob. How ever a political sfut is resolved thats how they would resolve cases. Marbury versus madison this is different. The constitution, its a law. If its a law we have the courts to tell what it means. That important insight in to how the constitution works has been i think the secret to its success. Thats the concern chief justice on the meaning marbury versus madison. Cliff salone you road the book on it. Whats your take on this and why is it so significant . Well, as the chief said, the Supreme Court is the ultimate authority and constitution and interpretation. That is a very important corner stone of our tunl system. And i think Justice Oconnell nor put it well, she said because of the marbury versus madison each of us have constructional rights that no president and congress can take away. And thats really what marbury stands for. Well, you amar why does this matter . Many of you have heard of judicial review. In a nutshell it means the court, not just the u. S. Supreme court but all courts in our system, state court lower and federal court has the ability to that act of congress or state law is inconsistent with the judges understanding of the constitution itself. Now, the interesting thing about judicial review is although marbury is the first case about judicial review,8 it actually judicial review wouldnt that vigorous before the civil war. So marbury becomes in some ways more important because of stuff that happens later in our story. You look back and read some things back into marbury. Sometimes perhaps it was a more narrow decision as you remember it being. Well, you call it a story and it is a story to tell. As we begin tonight we want to introduce you to several names youll be hearing throughout the 9 ominutes and understand the role they play in the case coming to the Supreme Court. Lets start with the principals, john adams 1800 where was he in his political career . He was the incumbent president. He was elected in 1796 after serving two terms as Vice President under George Washington. In 1796 it was the first contested president ial election between him and Thomas Jefferson. Adams narrowly won. The person who got the second electoral votes served add Vice President. So Thomas Jefferson was his Vice President. He and jefferson had a very severe Rivalry Development between them personally and between Political Parties and its the first time we see the emerges of Political Parties in our country. So Thomas Jefferson in 1800 decide he want the top spot. You have the sitting president running against the sitting Vice President. Just think about the instability of that. You know, in some ways it did happen but its an assassination incentive. Person whos a heart beat away is vigorously opposed to the policies of of the number one person. These are people who worked together, adams and jefferson back in 1776. As cliff says in 1796 they run against each other but its a relatively tame affair. Jefferson tell the supporters, my term will come lets not bad mouth adams too much. But now politics have become much more intense. But with its Political Polarization you got the sitting president against the sitting Vice President , both leading large camps, big Political Parties, as cliff said that really dont respect each other. And which one, at most extreme, which one of these parties thinks that the other one is borderline treason. So thats the rematch, 1776, 1800, sitting president against sitting Vice President. What happened in the election . Therein also lies the tales its somewhat convoluted. Some of your audience may remember back in 2000 in a nutshell, jefferson wins the south, hes the south earn ner. Adams win the north, hes the northerner. And the second time around, Jefferson Partners up with a man name erin burr from new york and new york swings from the northern camp, the adam camp to jefferson, the southern camp. It seems as if jefferson and his running mate, burr have prevailed but theres a wreng l. Ill let cliff tell you the rng l. The wrinkle is it wouldnt clear who was voting for who. So what happens was that jefferson and burr got the same number of votes. A tie. It was a tie. And everybody sort of knew at the time of the election that jefferson was the main candidate. But then after it becomes clear that theyre a tie, well erin burr isnt so eager just to defer to jefferson, because theres not a majority in the Electoral College it gets decided by the house of representatives with each state having one vote. And what you had to happen in the election jefferson and burr prevailed upon an incumbent adams. It was the first time in history thats happened. But the Congress Also had been swept by jeffersons party. And the house of representatives that was going to decide who was going to be the president between jefferson and burr was the outgoing federalist congress, adams party. The lame ducks. The lame ducks. Who had just been reputeuated but the lame ducks is going to be deciding who gets the top slot. Tlabsolutely. And they are very bitter against jefferson. It has been a fierce campaign. So, you have these very angry federalist who think jeffersons going to take the country in a terrible direction and theyre the ones worth task with deciding whether its going to be jefferson and burr. And it leads to great chaos, the house of representatives cannot decide because of the composition of those deligations. And finally those 37 ballots in just a couple weeks before the president is supposed to be inaugurated, before jefferson finally prevails. Up until that point there is great uncertainty and chaos throughout the country and there are all kinds of rumors of what may happen. So its a great it was a time of great uncertainty. Again, this is all in the context where there had never been an incumbent president ousted in an election before. Trying the constitution system that had been in place for just a short time. Our next important principal in this is John Marshall. He held two roles, secretary of state and appointed chief justice and held both positions at the same time. So hes adams right hand as secretary of state. And with the benefit of hind sight when we look back we can see basically that secretaries of states often become president s. So, Thomas Jefferson was a secretary of state, hes going to eventually hand over the presidency to James Madison who was secretary of state and james monroe, the next guy who was the secretary of state. And his son was secretary of state. Were not done yet, this might be good news more Hillary Clinton today. Remember john kerry didnt quite prevail. John marshall is john adams ally, his right hand, his secretary of state but hes also the new incoming chief justice. For a month he basically holds both positions. Theres one other wrinkle, since cliff mentioned, theyre all these conspiracy theory. What happens if this goes on and on and on and comes Inauguration Day theyre stideadlocked. Maybe theres a newspaper ha comes out that maybe the person who said occupy the white house in that circumstance is none other than the circumstance of state, John Marshall. John marshalls mentioned as one of the people that sort of nose himself into this really complicated situation. But for right as Adams Administration is ending, yes, John Marshall is both the secretary of state and the new incoming chief justice. And the fact one point thats important to emphasize on that is that adams nominate marshall and he gets confronted by the senate in late january, 1801, becomes chief justice in 1801, that is in the midst of this chaos. And John Marshall himself is a laying duck appointment by the outgoing john adams confirmed. So the new president coming in. He has the majority of congress but he learns that john adams finds a way to continue his point of view within the federal structure by the judiciary. So that gives rise for a whole case. Tell us what happened. What did john adams do . Well these are the midnight appointments and john adams who was somewhat bitter about defeat in the election, was determined to make as many points as he possibly can before he leave office. This is whether youre talking about United States attorneys, postmasters. The outgoing laying Duck Congress passes a new judiciary acts that creates a new level in the federal courts in 16 new judgeships. They do this very late in their time as the outgoing congress. And so john adams is fever ishly filling the posts, nominating people, sending it up to the hill. And at the same time, that congress creates lots of new posts in the School District of colombia which has just become the capital. He is literally staying up late until his last day in office, getting those appointments up to the senate, getting them confirmed. And his right hand man like akhil was saying, these appointments is John Marshall. Now chief justice, secretary of state, hes the one thats advising adams on the people and controlling the paper flow for them. And then as the moon oil burned the main thing that happened is not all these commissions got delivered and thats the constructirux of the. What happened . We can talk about it in two ways, in partisan terms the adams focus lost the presidency, lost the house, basically lost the senate. They tried to retreat to the judiciary, thats going to be their stronghold to resist the that they expect the jefferson yans will launch. So thats the partisan line up. The other way of thinking about it is the three branchs of government. You got jefferson basically coming in, no control. The presidency and pretty much the house and actually also the senate, but now the judiciarys going to be all these ghosts of enemies past who have now retreated into the judiciary. John marshall is responsible for getting all these new commissions out to their recipients. And it turns out that not all of them get properly delivered. They are signed by the almost midnight oil as adams is about to become cinderella, the coach is about to become the pumpkins and the horse is about to become mice. So right at the stroke of midnight he signs them all, his secretary of state and acting Supreme Court justice also, John Marshall seals them. So, theyve been sign, sealed, remember the proverb, signed, sealed, delivered but not all of them are delivered. The person who failed to deliver all these commissions was none other the John Marshalls brother, James Marshall who himself had been one of the appointees of the regime. Well, needless to say Thomas Jefferson was not excited about this. What were going to show you next is aler he wrote to Abigail Adams discussing his deep expressions of the midnight appointments. Welcome to the massachusetts Historical Society. Americas oldest society. About a quarter of 1 million manuscript pages. John and Abigail Adams and their decen desent dants have their papers here in a series of boxes obtaining their correspondents, diaries, mem wares, citizens concerning about the future of the American Government and its justice system. Inside these are boxes, you can read nearly 1,200 letters exchanged between john and Abigail Adams alone, telling us the story how it transformed from revolution to rebecpublic. Today were going to take a look at one of my favor letters written from Thom Jefferson to Abigail Adams in 1804 as the two tried to patch things up. A family tragedy brought together Thomas Jefferson and Abigail Adams. Jefferson took the opportunity when he replied to remind abigail that he and john adams had a long friendship, in fact he wrote, we have never today in one anothers way. He also for the first time spoke ex policely about the midnight appointments that had divided the. I can say with truth that one act of mr. Adams life i did consider his last appointments to office as personally unkind. They were from among my most political enemies from whom no faithful operation could ever be republicaned and laid me among men whos views were to defeat mine. Of the many of the Thomas Jefferson letters we hold this one reads definitely. Often the letter comes across as cool and reserved. Here hes sm what different, hes speaking to abigail as an sblekall all and hes concerned about how politics may have ruptured his friendships. And cliff on this em anity or this frustration, i should call it that, seethe in the books of jefferson you tell for years in the book about the appointments of the case. Both the appointments and the case for different reasons. They caming to, but first of all, in terms with adams as was indicated in that letter, jefferson took it very personally. I mean, he had won the election, he was taking over the government. Even in the executive branch, adams had done everything he could to pack it with his federalist allies. Jefferson in the whole series of lerts to his political allies, this is what hes saying to Abigail Adams you can imagine what hes saying to his political allies, he is very very bitter that hes inheriting a government packed with these people that adam has put there. Actual, throughout his several months in office, 1801, hes really trying to figure out what to do and hes sort of selectively, if he can figure out a way to block somebody or retrack their people he does it. But he doesnt want to launch full scales of assault. One thing is an example of how personally he took this, but he always mentioning that Jaime Marshall couldnt deliver all johns brother. Johns brother, James Marshall could not deliver all of the conditions, the pile was too big. The ones he left on the Table Including those of William Marbury and others who was supposed to be justice of the peace in the district of columbia. In a day or two after his inauguration, Thomas Jefferson himself, goes over to the state department and sees the stack of papers on a table and starts looking at it and remember hes been circumstance of state earlier under George Washington so he knows how the office work. Absolutely. And he sees this stack of papers, realizes what they are, commissions that have not been delivered. And he said, do not deliver these, because he is determined if theres any way that he can stop some of these midnight appointments and packing of the government hes going to do so. So, he personally is the one who say do not deliver these. He took it very very personally. Which is in another way of saying although the case, which we havent quite get got to is marbury versus madison, in effect is marbury versus jefferson. Madison is just a place holder, madison is just a new circumstance of state, jeffersons secretary of state. But madison is just doing what jefferson is telling him. This is really a lawsuit in effect against the sitting president of the United St