Manzella v. Marbury: What to Know

There’s no question in Bruce Spencer’s mind that, in America, it’s the courts who get the last word on what laws are constitutional. It’s been that way for 222 years.

But no matter how the lobbyist for the State Bar of Montana baited his argument for Republican lawmakers this week, he just couldn’t set the hook.

Republicans have roughly 30 bills in the works at this year’s legislative session that propose changes to the courts, including one revising laws concerning the separation of powers doctrine.

The change aims to give the legislative branch the last word on Montana Supreme Court rulings when legislators disagree with the court. Lawmakers crafted the bill after a series of rulings in recent years where Montana’s courts have declared laws passed by GOP legislators unconstitutional.

“Mr. Spencer, here we are again,” said Sen. Theresa Manzella, summoning the lobbyist to the podium in the Senate Judiciary Committee during a hearing this week. Manzella, who sits on the committee, is no stranger to pushing back on the government status quo.

“Yes. Here we are, senator,” Spencer replied. His hand traced edges of the lectern like he was searching for the knuckle on a bull rope, a good move when dealing with a lawmaker known for bucking accepted truths.

“Old friends. We like to kibitz about this issue, don’t we?” Manzella said. “I would like you to show me in either of these constitutions” — U.S. or Montana — “where it specifically states that the judicial branch has the power, the authority, to be the sole interpreters of the constitutionality of our laws?”

And just like that, the lobbyist and lawmaker were in a whirl over the meaning of Marbury v. Madison, the 1803 lawsuit in which the U.S. Supreme Court for the first time determined a federal law to be unconstitutional.

The Marbury ruling created the power of judicial review, meaning that courts can declare laws and congressional acts unconstitutional. The Supreme Court became the arbiter of the Constitution. Because of these roles, the courts became coequal and separate from the Congress and the executive, with the legislative and executive branches, capable of rejecting acts of Congress and the president on constitutional grounds.

“Marbury v. Madison is the law of this nation, and has been since 1803,” Spencer said. “It’s one of the reasons, a bedrock reason, why separation of powers has worked, despite being messy, despite being uncomfortable at times. It’s a key tenet of constitutional law in the United States.”

The state Senate majority has contended that “Marbury” is a myth, meaning that the courts don’t have the sole power to be arbiter of the U.S. Constitution. In 2023, Republicans passed a resolution declaring that and intended to put the state and U.S. Supreme Courts on notice with an official letter from both the House and Senate. But the Montana House allowed the resolution to die. Notably, Republican senators who are attorneys didn’t sign on.

Coming out of the 2023 session, courts continued to strike down Republican-backed laws. Ahead of last year’s primary election, the state Supreme Court voided four GOP-backed election laws passed in 2021. That court ruling was a major fissure point for Republicans and their frustrations with the court.

Weeks later, the court rewrote language for an abortion initiative, rejecting a version drafted by Republican state Attorney General Austin Knudsen. GOP legislators were expecting the language to go to an interim committee of lawmakers for review. That again, to lawmakers, seemed like the court usurping the Legislature’s power.

Speaking of Knudsen, one of the new multiple bills calls for an audit of the Office of Disciplinary Council, which prosecuted the attorney general for violatingMontana’s Rules of Professional Conduct. Knudsen’s actions came while defending the interests of Republican lawmakers and a law they passed. A Supreme Court decision is pending in Knudsen’s conduct case.

In the current slate of bills concerning the judiciary, there are three related to the state’s Judicial Standards Commission, including one to relocate the commission from the judicial branch to the Justice Department, the realm of Knudsen. The commission reviews complaints against judges in a process that is by law kept confidential. Justices argue that the confidentiality is reasonable because more than 90% of the complaints are ruled unfounded — most come from litigants unsatisfied with rulings. There’s a separate bill this year to make the complaints public.

There’s also a bill to subject judges to a performance review commission and one to spell out terms for impeaching judges.

Manzella argues that these powers for the court — such as review of ballot initiatives, discipline of the attorney general and more — aren’t specifically spelled out in Marbury, or the U.S and Montana constitutions.

But precedent isn’t necessarily spelled out in court rulings that create terms that later court cases refer to. The concept of stare decisis draws its name from the Latin phrase meaning “to stand by things decided.” The desired result is stability in how laws are decided. Adopted from English law, the practice predates the creation of the U.S. government.

“There’s no question that the people of Montana, when they ratified the Montana Constitution, understood that the judicial power, which is the phrase used in the Montana Constitution, includes the power of judicial review,” said Constance Van Kley, an instructor at the University of Montana Law School. As an attorney, Van Kley has prevailed in several cases in which laws advanced by Republicans were declared unconstitutional. “Nobody was disputing that in 1972.”

Real changes to judicial powers in Montana require changes to the Montana Constitution, Van Kley said, which is more difficult that what Republicans in the Legislature are attempting.

Marbury v. Madison concerns a judicial appointment made by President John Adams. Adams appointed William Marbury justice of the peace in the District of Columbia. Adams had made several appointments before the start of Thomas Jefferson’s presidency. But the commissions weren’t carried out. Jefferson, when he took office, paused his predecessors’ appointments. As a result, Marbury sued Secretary of State James Madison.

The court sided with Marbury but also refused to order his appointment fulfilled because it concluded that Congress was attempting to expand the court beyond what the constitution allowed.

It wasn’t lost on Manzella this week that a drafter of the Constitution was on the losing end of the Supreme Court’s decision that it had the final say on what the Constitution meant. It was the parting shot of her exchange with Spencer, which played out the old chambers of the Montana Supreme Court, a circular room with granite trim and a high wooden bench that curves across the form of the room in a half circle. The members of the Senate Judiciary Committee sit at the bench. Other participants who testified stood on the floor where attorneys argued some of Montana’s earliest landmark cases.

“I think we agree that Madison was one of the authors of our Constitution, and he disagreed with the position of Marbury v. Madison,” Manzella said. “I’ll just leave that as a comment.”

Spencer replied: “If you lost, of course you’d disagree, just as I disagree with many opinions. But I disagree with the opinion and not the institution. I don’t try to attack the institution simply because I disagree with the opinion.”