Daily Times

The Supreme Court (SC) or the top constitutional court has a legitimate role to play in shaping a country’s polity. The greatest example of this role was Justice John Marshall of the US, the fourth Chief Justice (CJ) of the US and, arguably, its true founding father in so much as we understand the SC today.
A lot of people flippantly mention Marbury versus Madison without even considering the extraordinary feat of intellectual gymnastics Marshall resorted to in order to get to what he wanted. It was an act of political finesse as well as colossal nerve. The issue arose out of the last minute appointments by President John Adams and John Marshall (who was also the secretary of state in John Adams’ administration) of judges. These appointments were politically motivated to pack the judiciary with Federalists (John Adams’ party) and thereby pre-empt Jefferson’s Democratic Republicans (who are today’s Democratic Party). Some of these appointments were not delivered and, as soon as Thomas Jefferson took over as president, he put an end to the delivery of the commissions. One of these commissions was to be delivered to William Marbury, a prominent Federalist. Marbury applied to the SC for a writ of Mandamus (i.e. to order someone to do something) asking the SC to order John Madison, Jefferson’s secretary of state, to deliver the commission to Marbury. The Judiciary Act of 1789 had vested the SC with the power to writs of Mandamus.
Justice Marshall’s opinion stated that while Marbury’s claim was just, it was beyond the SC’s jurisdiction to issue a writ of Mandamus. On the face of it, this looks like the SC voluntarily limiting its powers but that was the genius of Marshall. In order to say that it was beyond the SC’s jurisdiction to issue a writ of Mandamus, he declared the Judiciary Act of 1789 void on the grounds that it violated the constitutional jurisdiction vested in the SC. In other words, while saying “no thank you” to Congress’ conferment of jurisdiction, Marshall assumed for the SC the power of judicial review of all statutes.
Then there was the case of McCulloch versus Maryland, where Justice Marshall showed how influential he could be in determining not just the politics but economics of the new nation. In this case the issue was that Congress’ decision to incorporate the Second Bank of the US was met with resistance through taxation in the state of Maryland. Through his decision, Marshall held that Congress had the authority to incorporate a bank and that while state governments had ratified the Constitution, the sovereign power in the US was the US government of which Congress was the legislative wing. So, while in Marbury versus Madison, Marshall had limited Congressional powers of altering the jurisdiction of the SC, in McCulloch versus Maryland he achieved the exact opposite for Congress vis-à-vis the constituent states.
Another one of Marshall’s great opinions was in Dartmouth College versus Woodward, more famous for Daniel Webster’s eloquence than Marshall’s legal brilliance. This case pertained to Dartmouth College’s charter, which had been granted by the British king before the revolutionary war. The New Hampshire legislature attempted to change the terms and take it over as a state university. In this case, Marshall held the charter to be the equivalent of a contract and held that a sovereign power was bound by its own contracts, essentially binding them to the principle of pacta sunt servanda (agreements must be kept). This decision is the bedrock of the capitalist economy.
There are occasions where SCs go horribly wrong. After a long career of very reasonable decisions, Marshall’s successor — a Jeffersonian Democrat — CJ Roger Taney gave a remarkably shortsighted decision that in no small way ignited the US Civil War. This was of course the decision in Dred Scott versus Sanford. The issue ultimately turned on whether Dred Scott and his family were held as slaves in the slavery-free territories of Illinois and Wisconsin beyond the Missouri Compromise Line. In his opinion, Justice Taney declared that people of African descent, whether enslaved or free, were not citizens of the US and that the Missouri Compromise was unconstitutional and void. While the first point is horrendous and unfathomable, the second point is what created the constitutional crisis that was to take close to a million lives in the following decade. Justice Taney argued that slaves were private property and thus Congress could not touch them. This decision effectively meant that abolitionists had no recourse but violence to remedy a long-standing injustice. When the civil war broke out initially, both sides argued that they were fighting for issues other than slavery of course. The south claimed — very logically — that they were fighting for state rights and the north claimed — again very logically — that they were fighting to preserve the union. Yet, ultimately, it was slavery that trumped the issue and it was the emancipation proclamation that turned the tables in favour of the north.
Any SC has a massive role to play in nation building. Tragically, we who participated in the lawyers’ movement in Pakistan felt horribly let down by the unwise and often abrasive way the judiciary has acted in the last five years. The road to hell is paved with good intentions. We do not need saints in the judiciary as much as we need men of will ready to take the long view of things and ensure that their decisions are not only respected but enforced. However, for decisions to be respected, they have to be enforceable.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com