Criticisms of Marshall's opinion in
Marbury usually fall into two general categories.
[54] First, some criticize the way Marshall "strove" to reach the conclusion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government. Today, American courts generally follow the principle of "constitutional avoidance": if a certain interpretation of a law raises constitutional problems, they prefer to use alternative interpretations that avoid these problems, so long as the alternative interpretations are still plausible.
[56] In
Marbury, Marshall could have avoided the constitutional questions through different legal rulings: for example, if he had ruled that Marbury did not have a right to his commission until it was delivered, or if he had ruled that refusals to honor political appointments could only be remedied through the political process and not the judicial process, it would have ended the case immediately, and the Court would not have reached the case's constitutional issues.
[57] Marshall did not do so and many legal scholars have criticized him for it.
[56] Some scholars have responded that the "constitutional avoidance" principle did not exist in 1803, and in any case is "only a general guide for Court action", not an "ironclad rule".
[58] Alternatively, it has also been argued that the claim that Marshall "strove" to create a controversy largely vanishes when the case is viewed from the legal perspective of the late 18th century, when American colonies' and states' supreme courts were largely modeled on England's
Court of King's Bench, which inherently possessed
mandamus powers.
[59]
Second, Marshall's arguments for the Court's authority are sometimes said to be mere "series of assertions", rather than substantive reasons logically laid out to support his position.
[60] It is generally agreed that Marshall's series of assertions regarding the U.S. Constitution and the actions of the other branches of government do not "inexorably lead to the conclusion that Marshall draws from them."
[60] Marshall's assertion of the American judiciary's authority to review executive branch actions was the most controversial issue when
Marbury was first decided, and several subsequent U.S. presidents have tried to dispute it, to varying degrees.
[60]
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