Chief Justice John Marshall is credited with establishing the principle of judicial review – the power of courts to determine whether a law is consistent with the U.S. Constitution – in U.S. Supreme Court practice. This power was anticipated in Federalist 78, where Alexander Hamilton referred to the court’s duty “to declare all acts contrary to the manifest tenor of the Constitution void.”

In Marbury v. Madison, though, the court acted on this principle for the first time. That portion of the decision is well known.

The case began when a lame-duck Congress passed the Judiciary Act of 1801, which created a spate of new federal judges. John Adams, who had been defeated by Thomas Jefferson in the 1800 election, made the appointments, which were then confirmed by the Senate. The new judges, however, could not take office until their formal commissions were delivered by the secretary of state. That secretary was John Marshall, who ran out of time before Adams’ term ended. The commissions were not delivered, and four of the judges, including William Marbury, sued the new secretary of state, James Madison, so they could take office.

John Marshall, who was by then chief justice of the Supreme Court, famously held that the Judiciary Act was unconstitutional because it expanded the court’s powers to provide relief in lawsuits beyond what the Constitution provided.

Marbury thus did not become a judge, because without the expanded power granted by the Judiciary Act, the Supreme Court lacked the jurisdiction to provide the relief he sought.

In an important way, Marbury not only established the practice of judicial review, it also affirmed an even more essential concept, that courts may not act where they lack jurisdiction – authority determined by geography or subject matter or by legal powers.

As law professor Josh Blackman recently noted, there is an analogy between Marbury and the dispute over Texas’ abortion law, which the court heard arguments about earlier this week.

The case is only tangentially about abortion. The key question, as stressed in the oral argument, is the jurisdiction of the federal courts: specifically, whether the courts have jurisdiction to hear two lawsuits challenging the Texas law.

If Texas were to lose this case, then lawsuits challenging the law could proceed. If Texas were to prevail, the current lawsuits would be dismissed until an abortion provider was sued under the Texas law and appealed on constitutional grounds.

The Texas law was crafted purposely for this reason. If Texas had directly prohibited the abortions in criminal law, abortion providers could challenge that law and ask the courts to order state officials not to enforce it.

The law as written, however, allows private individuals to sue. So, there does not appear to be any state officials the courts could order to not enforce the law. Could they order state court judges not to consider the complaint? Could they order court clerks not to accept a court filing (as they are required to do under Texas law)?

Although it is impossible to tell how the judges will rule based on their questions, a number of the questions seem to indicate a concern that the current law is having the effect of dissuading abortion providers while being legally unreviewable until a complaint is brought.

In one way, this is the same dilemma Marshall had in Marbury. In that case the plaintiff was left without a remedy for his legal claim. The same thing is happening with the plaintiffs challenging Texas law. That is, unless a majority of the court feels that it must preserve the court’s traditional role and process for adjudicating a law’s constitutionality – finding a way to provide the federal courts the last word.