1

Source: Richard A. Posner, How Judges Think (2008), pp. 363 Bottom - 364 Top.

Yet without a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court Justices. He puts Marshall, who did less with much more, in the shade. (He borrowed from Marshall the trick of first announcing a novel rule in a case in which he concludes that the rule does not apply, so that people get accustomed to the rule before it begins to bite them.) [emboldening mine] Among the rules of Israeli law that Barak's judicial opinions have been instrumental in creating are that any citizen can ask a court to block illegal action by a government official even if he is not personally affected by it (that is,

even if he lacks "standing to sue" in the U.S. sense); that any government action that is "unreasonable" is illegal ("put simply, the executive must act reasonably, for an unreasonable act is an unlawful act"58); that a court can forbid the government to appoint an official who has commit- ted a crime, even though he has been pardoned, or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of "human dignity" a court can order the government to alleviate homelessness and poverty;59 and that a court can countermand military orders, decide "whether to pre- vent the release of a terrorist within the framework of a political 'pack- age deal,'"60 and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.61 These are powers that a nation could grant its judges. For example, many Euro- pean nations and even some U.S. states authorize "abstract" constitutional review—that is, judicial determination of a statute's constitution- ality without waiting for a suit by someone actually harmed by the statute. But only in Israel (as far as I know) do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision. One is reminded of Napoleon's taking the imperial crown out of the Pope's hands and crowning himself.

The emboldening hints to Malbury, right? But doesn't it misrepresent Marshall? Wikipedia outlines Marshall's answering 'yes' to these first 2 questions:

  1. Has the applicant a right to the commission he demands?

  2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

Marshall bifurcates the original 3rd question:

  1. If they do afford him a remedy, is it a mandamus issuing from this court?

into

  1. He is entitled to the remedy for which he applies. This depends on:

[3.]1. The nature of the writ applied for, and

[3.]2. The power of this court.

Marshall answers 'yes' to 3.1, but not 3.2. The "novel rule" referred by Posner is:

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

But how's Marshall's announcing this rule a "trick"? Marshall can't be blamed for the Judiciary Act of 1789's unconstitutionality ? If it were constitutional, then Marshall's rule WOULD apply. Thus this trick doesn't depend on Marshall.

3

Here's how a court decision would normally go:

  1. Do we have jurisdiction?

    • If no, terminate the case.
    • If yes, proceed to step 2.
  2. Decide the case.

Here's how the Marbury v. Madison decision went:

  1. Decide the case.
  2. Do we have jurisdiction?

    • If no, we cannot implement the particular remedies, but the rulings on the constitution and law from step 1 are still binding.
    • If yes, we implement the remedies, and everything's binding.

In other words, what the decision basically did was implicitly start with "Suppose we had jurisdiction..." and then drew a bunch of conclusions. They could review acts of Congress and declare laws unconstitutional (which was not an accepted power of the Supreme Court at the time; Jefferson thought this power should be the President's), even laws that had already been repealed. They could review (some) acts of the Executive branch, and force it to do (some) acts; in particular, they said they could serve a writ of mandamus to certain officers of the Executive branch. This was, again, not something that was accepted as a power of the Supreme Court before this decision.

But then they said "But the assumption that we have jurisdiction is faulty, because we just declared the law that gave us the requisite original jurisdiction—the case was filed directly to the Supreme Court and did not go through a lower court—to be unconstitutional." Thus the court would not actually force anyone's hand: Madison would not, in fact, be ordered to deliver Marbury's commission. This is important because Jefferson had a very adversarial attitude towards the Court, and was extremely likely to completely ignore any attempts by the Court to force the Executive branch to do anything. Doing so risked neutering the powers of the Judicial branch, and maybe worse. Similarly, that the decision struck down a law that was already repealed meant the Court avoided angering Congress.

Marshall had his cake, and ate it, too.

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