The way I read Marbury v. Madison, I conclude that the Supreme Court of the U.S. came up with 3 conclusions:

  1. Mr. Marbury was definitely appointed & commissioned by the departing president.
  2. Mr. Marbury deserves to have his commission given to him, as required by law (or a copy of it from the official record) so that he may start serving his office.
  3. HOWEVER, the U.S. Supreme Court cannot order the U.S. Secretary of State to give Mr. Marbury his rightful commission for office because the Court does not have original jurisdiction, but only appellate jurisdiction. (In this last conclusion the Supreme Court declared a law from Congress that gave them original jurisdiction as unconstitutional).

My question is as follows: why didn't Mr. Marbury prevail in the end? That is to say, why didn't he transfer his lawsuit to one of the inferior courts? His case would have been a slam dunk there! After all, the U.S. Supreme Court had already declared that he really was appointed, and that he deserved his commission. And even if, for some strange reason the lower court did not rule in his favor, he could then APPEAL to the Supreme Court, at which point the Court would THEN have jurisdiction, and given its prior analysis, would have to rule in Mr. Marbury's favor.

I decided to post my question here since there is no "law" or "constitutional law" SE. Maybe one should be created?

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    He didn't choose to do so. I don't think I have seen any historical accounts for why Marbury chose not to, but lots of motivational info regarding Justice Marshal's decision. The Judiciary Act was overturned, and many midnight justices lost positions. Maybe Marbury being a rich banker didn't think it was worth it. – user1873 Jun 8 '14 at 18:24
  • @JirkaHanika: It didn't exist when the question was asked, though. – user2357112 supports Monica Aug 8 at 6:50
  • @user2357112supportsMonica - Good point, I'm deleting my comment. – Jirka Hanika Aug 8 at 19:23

Here's a very interesting paper which suggests the events may have been somewhat orchestrated by Marshall, written by a law professor at Georgetown University:


The paper goes into a lot of the circumstances surrounding the case and points out that Marshall (and others) may have been gaming the system in Marbury in order to exert control over the (politically hostile) incoming President and Congress. That is, John Marshall wanted a strong, clear precedent for judicial review and manufactured it.

I agree with the paper. The fact that Marbury (et al.) never took the case to a lower court (discussed on p 626 (p 22 of the pdf)) suggests that he and at least some of the other "midnight judges" never really wanted those jobs in the first place and were just willing agents of a larger plan.

The paper suggests more parts to the story but that is the element that pertains to your question.

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  • Can you summarize how the paper answers the question a bit more in case the link becomes dead at a later date? – lazarusL Jun 3 '15 at 14:16
  • Remember, in Stack Exchange we try to build a database. You need to put more information about it, talk a little bit about the paper, make a conclusion, write your own opinion. – nelruk Jun 3 '15 at 18:06
  • Interesting find! If you can highlight some main arguments made by the paper to indicate that "willing agents" is plausible - never mind proven - it would be very good! – user4012 Jun 7 '15 at 2:53
  • Well, this is the best answer I have heard thus far. Therefore, I am marking it as the answer. It sounds like nobody knows for sure. – ltcomdata Jul 26 '15 at 17:36

From my understanding, once a case is taken to the supreme court it cannot be brought to a lower court, which explains why Mr. Marbury didn't take his case to a lower court.

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