Marbury v. Madison, Part II

by Professor Byron L. Warnken on April 28, 2010

Continued from Marbury v. Madison, Part I

Marbury v. Madison established the principle of “judicial review,” making the judicial branch “first among equals” by speaking last.  The legislative branch enacts the laws and the executive branch enforces the laws, but only the judicial branch determines what the laws mean and whether they are constitutional.  Many times since Marbury v. Madison, the Supreme Court has demonstrated that its pre-eminence.  A few examples of the Court finding unconstitutional acts of the executive branch and/or laws of the legislative branch are as follows:

Perhaps, the most significant exercise of the Court’s power, subsequent to Marbury v. Madison, is Brown v. Board of Education, decided in 1954.  Parents challenged school racial segregation that permitted separate schools for black and white students under the “separate but equal” doctrine approved in Plessy v. Ferguson.  By a vote of 9-0, the Court held that segregation in public schools denied African-American children rights under the Fourteenth Amendment Equal Protection Clause.  Although progress has been imperfect over the last 56 years, in Brown, the Supreme Court applied its power under Marbury v. Madison and changed America forever.

In 1965, in Griswold v. Connecticut, the Supreme Court interpreted the Fourteenth Amendment Due Process Clause to contain a right of privacy, which was violated by a law that prohibited distribution of contraceptive information to unmarried women.  In 1973, in Roe v. Wade, the Court interpreted the right of privacy to protect, from state interference, a woman’s (and her doctor’s) reproductive decision regarding abortion during the first trimester.  In 2003, in Lawrence v. Texas, the Court held that that sodomy convictions violated a liberty and privacy interest because (1) the statute impermissibly sought to control a personal relationship that was within the liberty of the two individuals to choose to engage, (2) the stigma imposed by the statute was significant, and (3) the statute did not further a legitimate state interest that could justify this severe intrusion into personal and private lives.  The right of privacy protects all sexual conduct that that is (1) consensual, (2) private, (3) adult, (4) non-commercial, and (5) non-incestial.

Under Marbury v. Madison, the Supreme Court has the power to “make a President” and “break a President.”  In 1974, in United States v. Nixon, the Court “broke a President.”  A grand jury indicted the Watergate burglars and named President Nixon as an un-indicted co-conspirator.  The special prosecutor subpoenaed audiotapes and documents of conversations between Nixon and his staff.  Nixon claimed executive privilege.  The Court held (8-0) that executive privilege did not trump due process.  Under separation of powers, Nixon lacked the power to terminate the Watergate special prosecutor and was required to turn over audiotapes made in the Oval Office.  The holding of the Court had the net effect of ending the Nixon presidency.

In Bush v. Gore, the 2000 Supreme Court “made a President.”  In Florida, because George Bush was less than 0.5% ahead, there was an automatic machine recount.  After significant maneuvering, Florida Secretary of State Harris denied extensions for manual recounts and declared Bush the winner by 537 votes.  Al Gore filed suit and the Florida Supreme Court ordered manual recounts in several counties.  Bush appealed to the Supreme Court, which held (5-4) that the recount must stop and held (7-2) that the Equal Protection Clause prohibited a recount because there was no uniform procedure among the counties .  The Court held (5-4) that the remedy was to cease recounting and certify the election “as is.”  The holding of the Court had the net effect of creating the Bush presidency.

It would be naïve to think that there are no politics in the judicial branch.  However, the judicial branch is significantly more independent than either the executive branch or the legislative branch.  Thank goodness for Marbury v. Madison.

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