June 29, 2012

YEAH, BUT IT WAS SUPPOSED TO BE OUR TURN TO ACT LIKE THE WARREN COURT!:

Why Roberts Was Right (Michael Knox Beran, June 29, 2012, National Review)

However painful it was to read the headline "Obamacare Stands" on Drudge yesterday, Chief Justice Roberts made the right call.

Roberts's opinion, far from being an act of cowardice or betrayal, is true to the tradition of the early Republic, when the Supreme Court exercised the power of judicial review to strike down federal statutes only very rarely.

Before 1803, federal judges, acting on Alexander Hamilton's arguments in Federalist 78 and Sir Edward Coke's ruling in Bonham's Case, flirted with the idea of judicial review of federal laws. But it was only in 1803 that the doctrine came into its own, when the Supreme Court struck down a clause in the Judiciary Act of 1789 because it was, in Chief Justice Marshall's words, "in opposition to the Constitution."

The case, of course, was Marbury v. Madison. But the justices were hardly intoxicated by their newly asserted power. The Court didn't invalidate another federal law again until 1857 -- in Dred Scott v. Sandford, not exactly the crown jewel of American jurisprudence.

Judicial review, like any other form of authority, is subject to the Actonian principle that power corrupts.

Learned Hand deplored the way this particular power was corrupting the integrity of the Supreme Court, and in his 1958 Oliver Wendell Holmes Lectures at Harvard he warned that the Court was becoming a "third legislative chamber."

Posted by at June 29, 2012 7:49 PM
  

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