by Justice Evelyn V. Keyes and Angela W. Spoede, First Court of Appeals

As Chief Justice John Marshall famously said in Marbury v. Madison, “It is emphatically the province and duty of the judicial department to say what the law is.” 5 U.S. 137, 177 (1803). This is not a quaint and dusty maxim whose significance has faded over the centuries; rather, it goes to the heart of one of the most important concepts in our system of government—the existence of an independent judiciary. Marbury was decided in the midst of deep political divisions that spilled over into the judiciary, at a time when political leaders struggled to answer fundamental questions regarding the nature of our self-government. Over 200 years later, we again find ourselves in times of political upheaval. The questions that Marbury sought to answer seem newly relevant as we continue to grapple with questions of the judiciary’s role.

Modern jurists continue to pick up Chief Justice Marshall’s mantle. In recent years, Chief Justice Roberts, dissenting in Obergefell v. Hodges from Justice Anthony Kennedy’s majority holding that the Fourteenth Amendment contains a substantive constitutional right to gay marriage, rebuked his colleague for overreach, relying on Marshall and stating: “Under the Constitution, judges have power to say what the law is, not what it should be.” 135 S. Ct. 2584, 2611 (2015) (Roberts, C.J., dissenting). And in just the last two weeks of the current spring 2019 term, four Supreme Court opinions have used Chief Justice Marshall’s aphorism. But they do so in such different contexts that we must examine the words in Marbury with fresh eyes and attempt to discern whether the current justices have given the same meaning to Marshall’s broad turn of phrase as Roberts or Marshall himself.

Answering these questions is what judicial philosophy (the philosophy of law) is all about. But we must remember that law is not an abstract branch of philosophy—the law communicates in terms of something. And that something is a shared conception of what the law is, how it works and should work, how to keep it stable and reliable for its future users, and how it relates to justice.

Which leads to the question so central to Marbury: Where does a judge’s accountability and responsibility lie? Note that nowhere does Marshall say that, in “say[ing] what the law is,” a judge is responsible only to himself and his ideas, although some theorists do argue that his responsibility lies to his better self, his ideal self. But this then leads back in the minds of skeptics to the age-old question: “Who will guard the guardians?” From Marbury to the present, the common law has worked to keep judges from descending into arbitrariness and caprice, and that is what the judicial independence Marshall stood for is all about. It is not independence from all constraints of rules of law, legal reason, and equity. It is independence from improper constraints.

Marshall was concerned in Marbury to establish the particular duties of the judiciary as opposed to the executive and legislative branches of government. So it is instructive to see what he thought the judiciary was bound by its duty to do. That was to apply the rule of law to particular cases, which entailed, he wrote, to “expound and interpret that rule.” Marbury, 5 U.S. at 177. And that task, in turn, meant, when two laws conflicted with each other, deciding on the operation of each. Id. Most importantly, when both a law and a constitutional principle applied to a case, it was the duty of the court either to “decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law.” Id. at 178. “This,” he wrote, “is of the very essence of judicial duty.” Id. And that duty required taking the Constitution to be “superior to any ordinary act of the legislature” and indeed taking that instrument “as a rule for the government of courts, as well.” Id. at 179-80 (emphasis in original). Courts, then, are themselves bound by their duty under the Constitution and are limited to expounding and interpreting the rule of law in conformity to the Constitution. But that still leaves the question: what are the limits to the judge’s freedom to interpret the Constitution?

The eminent legal philosopher Ronald Dworkin has argued that the determination of the requirements of fundamental constitutional principles should be made by Supreme Court justices in accordance with the “best” construction of those principles from the standpoint of the ideal rational state. And it is easy to infer from the plain language of the aphorism that Marshall too approves an unlimited power in judges on the highest court simply to decree the law for everybody else. But Marshall does not do that.

For Marshall, it is the judicial department that has the power to construe the law, but only that power, and that construction seems clearly to be constrained by the plain meaning of the words of the constitutional principles construed as understood by the drafters. And, indeed, that is the sense in which Justice Thomas, writing in a concurrence in Gamble v. United States, construes the phrase, finding in it the concept that “‘[j]udicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.’” 139 S. Ct. 1960, 1982 (2019) (Thomas, J., concurring) (quoting Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866 (1824)).

There is thus a spectrum of judges who, like Marshall, Roberts, and Thomas, believe themselves constrained by the plain language of the laws and the constitutional principles against which the laws are judged, and by precedent, and judges who—in line with contemporary legal theory—see themselves as final authority for deciding the best construction of constitutional principles and who believe themselves bound solely by their own view of the true meaning of the great constitutional principles, such as equality under the law and due process or liberty.

Ultimately, the two constraints on judges have to be law and justice as understood and enacted into law by legislators and faithfully and fairly construed by judges. It is in determining where to strike the balance between the language of the law and justice that judges say what the law is. And in the end the power to say what the law is must come down, as Justice Marshall said, to “the particular phraseology of the constitution of the United States,” to which all inferior laws must conform, and “courts, as well as other departments, are bound by that instrument.” Marbury, 5 U.S. at 180 (emphasis in original).