Marbury v. Madison

The tradition of judicial review began with a Supreme Court Case decided in 1803. In Marbury v. Madison, the Supreme Court used the power of judicial review for the first time- that is, their power to determine whether a law is constitutional or not.

When it became apparent that John Adams, a Federalist, was not going to be reelected in 1800, he needed to find a way to keep Federalists in government (the Federalists were going to lose many seats in Congress, as well, in 1800) and the avenue he chose was the judicial branch. Because a justice’s tenure is “good behavior,” installing Federalist justices was a way to guarantee the Federalist tradition would remain in government for a very long time. When Adams signed the commissions for the “midnight judges,” he relied on his Secretary of State (who would become Chief Justice of the Supreme Court) John Marshall to deliver them. Marshall got to most of the commissions, but not all of them. Those that remained he left for the next secretary of state, James Madison, to deliver. When Madison discovered the commissions for Federalist justices on his desk, he asked his boss, the new president of the U.S., Thomas Jefferson, what to do with them. Because they were Democratic Republicans, the opposing political party, they did NOT deliver the Federalist justices’ commissions. One person who was supposed to receive a commission but did not was William Marbury. He sued James Madison.

William Marbury wanted his commission, but he wasn’t going to get it without the court forcing Madison to deliver it. He asked the Supreme Court for a writ of mandamus, or a court order that would make Madison deliver the commission. By asking for the writ of mandamus posed an issue– at this point the Supreme Court wasn’t that powerful. It had only heard a handful of smaller cases. Madison (and Jefferson) could just ignore their writ and embarrass them. How was Marshall- who was now Chief Justice with a considerable conflict of interest- to get out of this with more power for the court? His decision was brilliant: Marshall said that while Marbury should have received the commission, it was unconstitutional for the Supreme Court to give it to him as the Constitution didn’t give them original jurisdiction in cases involving writs of mandamus. The Federal Judiciary Act of 1789 gave them that power and a Congressional law can’t override the Constitution. Judicial Review was born!

Ruth Bader Ginsburg

RBG first began fighting for women’s rights in small ACLU cases in Newark New Jersey. In those cases she was helping individuals, but she also wanted to change the system. That opportunity came in 1970 with the case Moritz v. Commissioner of Internal Revenue. Moritz argued that it was unfair to deny him a tax deduction for the money he paid a caretaker for his 89 year old mother, who was his dependent. He said that he was denied the tax deduction because he was a single man when it would have been given to a single woman in the same situation. The law sought to give a benefit to people who cared for dependents but couldn’t imagine a man doing so. Ruth argued for Moritz (and this was only supposed to be a tax case, but it turned into one of gender discrimination) and the court ruled in his favor in 1972. They decided that the code made an “invidious discrimination based solely on sex” and opposed the 5th amendment’s guarantee of due process. This was the first time IRS code was declared unconstitutional.

Another landmark case that RBG argued as a lawyer was Reed v. Reed (1971). The Idaho court specified that males must be preferred to females in appointing administrators of estates. After the death of their adopted son, Sally and Cecil Reed (who were separated) fought to be administrator of their son’s estate. The role would default to Cecil under Idaho law. Ginsburg built upon the Moritz arguments and used the arguments of feminists Pauli Murray and Dorothy Kenyon to get the Supreme Court to rule unanimously that the dissimilar treatment of men and women was unconstitutional. After this case, the ACLU established the Women’s Rights Project under Ginsburg to persuade the courts to look at sex-based cases under struct scrutiny, as it does race-based cases. In all, Ginsburg argued 6 gender discrimination cases before the Supreme Court and won all but one.

As a justice, Ginsburg continued to fight for women’s rights. In US v. Virginia (1996), the Virginia Military Institute was the last all-male public college. The state of Virginia argued that women weren’t suited for VMI training and that the separate military program at a women’s only college, Mary Baldwin University, was equal to theirs. Ginsburg ruled in favor of the US, saying that the goal of producing citizen soldiers nor VMI’s methodology was inherently unsuitable to women. Further, no one can make generalizations about the “way women are,” estimate what’s appropriate for “most women,” or justify denying opportunity to women whose talent and capacity place them outside the average description.

Perhaps just as important as when RBG was in the majority is when she dissents (you can tell when she dissents by the collar she wears!). For example, in Ledbetter v. Goodyear Tire and Rubber Company (2017), Lilly Ledbetter sued Goodyear for 19 years of unequal pay due to what she alleged was gender bias. But Title VII of the Equal Pay act said that pay disparity had to be reported within 180 days of the violation, therefore Ledbetter could only complain about 180 days, not the 19 years of unequal pay throughout her employment. The Supreme Court ruled in favor of Goodyear 5-4, but Ginsberg pointed out in her dissent that Ledbetter couldn’t file sooner because she didn’t know about it. She outlined the gender wage gap in her dissent and pressed Congress to amend the 180 day clause of Title VII since the Supreme Court failed to declare it unconstitutional. Congress did and it became the Lilly Ledbetter Fair Pay Act.

For more examples of RBG’s constant vigilance against discrimination of all kinds (including race and LBGTQA+ rights) give this week’s History in the Kitchen a look. And this week’s recipe (from RBG herself) can be found in the American Bar Association’s cookbook celebrating 100 years of the 19th Amendment.