THE FIRST THING YOU HAVE TO UNDERSTAND ABOUT THE COURT... (via Glenn Dryfoos):

Justices Gone Wild (ROSS DOUTHAT, 6/02/09, NY Times)

Sotomayor will be joining a high court that’s gradually become a kind of extra legislative body — a nine-person super-Senate graced with the power of the veto, where liberals and conservatives alike turn when they’re confounded in the Congress.

Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.

The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.

...is that Marbury v. Madison is aconstitutional. It and any ruling depending on it should be ignored by the other branches.

Posted by Orrin Judd at June 2, 2009 6:37 PM