Why Did Marbury Choose to Invoke the Supreme Courts Original Jurisdiction–and Then Not Bring His Case to a Lower Court Where He Surely Would Have Won?
Another mystery of Marbury is this one: the Supreme Court, as we have seen, denied Marbury and the other plaintiffs the remedy they sought, even though they were properly “entitled” to it. The Court refused to grant the writ of mandamus on the ground that Section 13, which had conferred that power on the Court, was unconstitutional. But the plaintiffs were not at a loss. They had another option. but didn’t use it. Why? After losing in the Supreme Court the plaintiffs could have applied to the Circuit Court of the District of Columbia for the writ of mandamus that would have gotten them their commissions. The D.C. Circuit clearly had the power to issue the writ. So why didn’t the plaintiffs go there? (And for that matter, why didn’t they go to the D.C. Circuit Court first, before going to the Supreme Court?). Georgetown Law professor Susan Low Bloch has recently offered an explanation to solve this mystery. She suggests that perhaps the plaintiffs really weren’t interested in the commis
