Today in Supreme Court History: February 1

Marbury v. Madison, 5 U.S. 137 (decided February 1, 1803): Marshall rules that the Court has no original jurisdiction to enforce a judicial appointment which Marshall (as Secretary of State) had failed to get delivered. Marshall was also already Chief Justice at the time.  He should have, of course, recused himself.  This case is often cited as the precedent for judicial review, but that part of the opinion is dicta, as Marshall later pointed out (Cohens v. Virginia, 1821).  Among the Founding Fathers judicial review already went without saying, as can be seen in the Washington Administration’s 1793 consultation to the Court, raised as they all were in the British tradition (see “The British Origin of Judicial Review of Legislation”, 93 Univ. Pa. L. Rev. 1 (1944))

Chisholm v. Georgia, 2 U.S. 419 (decided February 1, 1793): citizen of another state can sue a state in federal court under original jurisdiction (Georgia had bought supplies from South Carolina citizen but never paid him); this holding was a straightforward reading of Article III (it was a suit between a State and a citizen of another State; also of the Court’s original jurisdiction, because a State was a party) but, as my Con Law professor put it, “the whole country went nuts” when they realized how far federal court power extended and it was quickly abrogated by the Eleventh Amendment

Murray v. The Schooner Charming Betsy, 6 U.S. 64 (decided February 1, 1804): Danish-flagged vessel owned by French citizen en route to Danish island should not have been seized under the Non-Intercourse Act of 1800 (this was the “Quasi-War” with France) (it also was not a war vessel, having only one musket, a few balls, and a few ounces of powder) (this case is the source of the doctrine that “an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”)

Scott v. London, 7 U.S. 324 (decided February 1, 1806): slave (named in the caption as “Negro London”) not entitled to freedom even though brought into state (Virginia) by one falsely claiming to be his owner and who allowed the 60-day in-state certification period to expire, and it wasn’t until 11 months later his real owner (from Maryland) came to get him

Rose v. Himely, 8 U.S. 241 (decided February 1, 1808): Court had jurisdiction to rule that French privateer could not seize American vessel outside foreign sovereign’s territorial waters (more than three leagues off Santo Domingo, at the time in rebellion against Napoleon)

Waters-Price Oil Co. v. Deselms, 212 U.S. 159 (decided February 1, 1909): Court affirms Territory of Oklahoma court verdict in favor of father whose children were killed in coal oil explosion; oil contained gasoline in violation of Territory statute; possible Equal Protection violation because statute punishes different people differently but that can be severed from the rest of the statute