The Irrepressible Myth of Marbury

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago – 1803, if the storyteller is trying to be precise – in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of “judicial review.” Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As befits the name of the court from which the doctrine emanates, the Supreme Court’s power of judicial review – the power, in Chief Justice John Marshall’s famous words in Marbury, “to say what the law is” – is supreme. The Congress, the President, the states – indeed, “We the People” who “ordain[ed] and establish[ed]” the Constitution – are all bound by the Supreme Court’s pronouncements. Thus, the decisions of the Supreme Court become, in effect, part of the Constitution itself. Even the Supreme Court is bound by its own precedents, at least most of the time. Occasionally the Court needs to make landmark decisions that revise prior understandings, in order to keep the Constitution up to date with the times. When it does, that revised understanding becomes part of the supreme law of the land. Other than through the adoption of a constitutional amendment, however, the Supreme Court is the final authority on constitutional change. Judicial review (the myth continues) thus serves as the ultimate check on the powers of the other branches of government, and is one of the unique, crowning features of our constitutional democracy. The final authority of the Supreme Court to interpret the Constitution has withstood the test of time. It has survived periodic efforts by the political branches, advanced during times of crisis (the Civil War and the Great Depression) or out of short-term political opposition to initially unpopular or controversial rulings (like Brown v. Board of Education and Roe v. Wade), to undermine this essential feature of our constitutional order. Through it all – Dred Scott and the Civil War, the New Deal Court-packing plan, resistance to Brown, the Nixon Tapes case, the Vietnam War, the quest to overrule Roe v. Wade – the authority of the Supreme Court as the final interpreter of the Constitution has stood firm. Indeed, the Court’s authority over constitutional interpretation by now must be regarded, rightly, as one of the pillars of our constitutional order, on par with the Constitution itself. So the myth goes.