IX: “Judicial Review” Makes Supreme Court More Supreme

In 1803, Chief Justice of the Supreme Court John Marshall, a staunch Federalist favoring a strong central (federal) government, wrote the majority, five to nothing, decision opinion in the case of Marbury v. Madison. The nature of the case was not as important as Chief Justice Marshall’s previous position as Secretary of State under President John Adams. Both were Federalists. After losing the election of 1800 to Thomas Jefferson, Adams nominated Marshall to the Supreme Court as Chief Justice on January 20, 1801 – two months before his term expired; subsequently he received the consent of the Federalist controlled Senate and was sworn in.

After being sworn in as President, Jefferson appointed James Madison (Marbury v. Madison) as Secretary of State. Again, the case itself is of little importance except that it allowed Marshall to include in the majority opinion, “Judicial Review”. This was the opinion that even though the Constitution did not provide specifically for the Supreme Court to declare an act of Congress or actions of the Executive Branch unconstitutional, that if a law or action was contrary to or not empowered by the Constitution, it could be declared unconstitutional.

Neither the Executive Branch nor the Congress did anything about this power grab, which effectively made the judiciary superior to the other branches, because it now had the last word. What exacerbated this decision was that it extended to the States. Acts of state legislatures could also be struck down as being unconstitutional, making the Supreme Court and inferior courts, a branch of the federal government, superior to the States, individually or as a union. Some would say that this was not a power grab, but it did elevate the Supreme Court as superior to the other two branches and the states under the theory of checks and balances.

If we accommodate a Supreme Court of five jurists at that time, and now nine jurists from 1869, making decisions of constitutionality, at least we have a panel of jurists with varying opinions voting. What is unconscionable is that judges of inferior courts, individuals, now routinely declare acts of entire legislatures and constitutional referendums, whether it be from the States or Congress and even of the citizens of States, as unconstitutional – one person can do this?

Just a few years or so ago a federal judge declared that the military must eliminate its “Don’t Ask Don’t Tell” policy and thus was attempting to force the military to change to an openly gay policy.  Whether you like the policy or not, should one unelected jurist be allowed to possibly have a detrimental effect or any effect at all, on our armed forces and our national defense structure? Should one jurist decide how our military is structured?

Subsequently the Department of Defense eliminated “Don’t Ask, Don’t Tell”, and has opened the armed forces up to both straights and homosexuals.  The Supreme Court refused to hear the case and the Obama Administration has complied with the lower court ruling, or as the Constitution refers to the lower courts as the inferior courts.

Back to John Marshall’s opinion: the real root importance of the Marbury v. Madison case was an attempt by Marshall, a staunch Federalist, to stick it to Thomas Jefferson, his political enemy. Yet, now we have given progressively trained, individual jurists supreme power over the States, Congress, and the Executive Branch – this incredulous situation was never intended by the founders. The separation of powers among the three branches of the federal government and the equality of the branches started to unravel as early as 1803.

Could it not be said that the states have the right to declare a federal action unconstitutional?  Can they nullify a law, regulation, order, memorandum, or judicial decision as being unconstitutional?

This decision, “Judicial Review”, made the Supreme Court unequal and superior to the other branches. No longer did a check on the authority or decisions of the Court exist. Congress and the Executive Branch were now junior partners. The Court was now able to remake our Constitution, write law, and at times enforce the law. The tearing apart of our Constitution had begun.

For more on this go to FindLaw to learn about the history of judicial review. For more on the history of Marbury v. Madison go to “John Marshall’s Judicial Mind”.

Also try “The Judicial Mind of John Marshall: Nationalism