Supreme Court rejects fringe elections theory

[Ocelot II]

14. The concept of judicial review was established well before Marbury,

and the Court did not invent it. The concept was built into the Constitution through the establishment of equal branches of government.

That particular case had political origins, as many of them do: Following the hotly contested 1800 election, a lame-duck Federalist Congress, wishing to keep the judiciary in Federalist hands, passed the Judiciary Act of 1801, which created dozens of new federal judges to be appointed by Adams before Jefferson could be sworn in. The Judiciary Act also conferred original jurisdiction on the Supreme Court to issue writs of mandamus to to order executive officials to take particular actions. But somehow one of the new commissions, one for Marbury, was not delivered before Jefferson took office. Since this was a Federalist appointment Jefferson ordered it to be withheld, and Marbury sought a writ of mandamus from the Supreme Court to compel the delivery of the commission. The Supreme Court eventually held that Marbury had a right to the commission, since he'd been appointed and confirmed, but held that the section of the Judiciary Act that authorized the Court to issue the writ of mandamus was unconstitutional on the ground that Article III of the Constitution did not allow Congress to give the Supreme Court original jurisdiction over mandamus actions. You can't really say that the Court was trying to hamstring Jefferson, since the Federalist judge Marbury did get his commission.

But judicial review was already a thing; it wasn't created from whole cloth for any anti-Federalist political reasons. As Moore v. Harper points out:

.

Marbury did not invent the concept of judicial review. State courts had already begun to impose restraints on state legislatures, even before the Constitutional Convention, and the practice continued to mature during the founding era. James Madison extolled judicial review as one of the key virtues of a constitutional system, and the concept of judicial review was so entrenched by the time the Court decided Marbury that Chief Justice Marshall referred to it as one of society’s “fundamental principles.”

https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf There is an extensive discussion of the history of judicial review beginning at p. 12 of the opinion.